Solicitor-client privilege is a principle of universal justice and a constitutional right of paramount significance that is the foundation of the Canadian judicial system. Solicitor-client privilege covers correspondence between an individual and his or her lawyer for the purpose of receiving legal advice. Privilege is profoundly rooted in the common law, the ethical standards of conduct and the constitution.
Privilege and Privacy
Privilege is a rule of proof excluding the admission of evidence which is otherwise appropriate and a justification for resisting the processing of documentation or records which may otherwise be needed by statute. Privilege is similar but distinct from secrecy in essential ways.
Confidentiality imposes an obligation on a person that receives documents or information in confidentiality to preserve that confidence. Lawyers have a professional duty to keep confidential business and personal information obtained in a lawyer-client relationship and should not disclose confidential information without the consent of the client or as required by law.
A duty of confidentiality may occur in a variety of other partnerships and may also be enforced by contract or circumstances in which information is exchanged.
Privilege categories
Solicitor – Client Privilege
Solicitor-client privilege covers those correspondence between the client and his counsel. Only emails are protected by attorney-client privilege-physical artifacts are not. Solicitor-client privilege endures forever, long after the client’s death. Only if one of the narrow exceptions is met will the client-solicitor right be waived. The prerequisite to define the client-solicitor privilege is as follows:
There has to be a communication, whether oral or written
Communication must be of a confidential nature
Communication must be made between the client (or his/her agent) and the legal adviser, and
The correspondence must be specifically related to finding, formulating or offering legal advice.
Preliminary negotiations between the prospective client and the lawyer with a view to keeping the lawyer would be privileged, even though the prospective client decides not to retain the lawyer.
There is a spectrum of obtaining or receiving legal advice and rights which may be attached, under particular cases, even if the document itself does not provide explicit legal advice.
Privilege can be claimed in the course of criminal investigations as a justification for refusing to disclose documentation or evidence that may be limited by a lack of privilege. For example, rights can be claimed when the authorities conduct a search warrant. Legal defense of the lawyer-client privilege is not limited to the physical limits of the law firm, but also to ‘any location where protected records may reasonably be assumed to be found.’ Privilege can also be asserted in the face of inquiries by the Competition Bureau of Canada.
Litigation Privilege
Litigation protection (also known as ‘procurator’s brief’ or ‘procurator’s work substance privilege’) protects from disclosure documents that are written for the dominant intent of litigation. Litigation protection does not exist to safeguard the confidential relationship between the lawyer and the client, but to promote the adversarial nature of litigation. Also non-confidential information can be shielded where the primary reason for its life is litigation. Knowledge collected from third parties in the course of a dispute, and without confidentiality, is nevertheless entitled to the protection of a dispute. The right of arbitration extends to both court and administrative proceedings.
Litigation privilege ensures that the records in question have been drawn up: in the form of litigation which is ‘in a fair prospect’ and
For the ‘dominant intent’ of use in the form of litigation. ‘Reasonable prospect’ means that a reasonable person, given all relevant details, will conclude that it is unlikely that the claim for loss could be settled without litigation. Litigation protection is intended to create a privacy space for a lawyer or litigant in the course of a dispute. Litigation protection expires with the conclusion of the litigation. There may be overlap between the privilege of the attorney-client and the privilege of the litigation, and the privilege of the lawyer-client may continue even after the litigation has ended.
Documented or oral correspondence with a view to conciliation or mediation are protected from disclosure. Settlement rights are the obligation of all parties to settlement negotiations and cannot be unilaterally waived by any one party. In order to apply the right of settlement, the following conditions must be met:
A conflict must be in existence or in the sense of a dispute The correspondence must be made with the explicit or implied intention that it will not be revealed to the court in the event of a failure to negotiate and
The object of the communication must be to attempt to bring about a settlement.
The quality of the communication is more important than its nature. By using the words ‘without bias’ the purpose is not conclusive, but it may provide proof that the contact is privileged.
Some types of rights
Spousal Communications
Communications between spouses are privileged (in both criminal or civil proceedings). While the partners may be required to provide evidence against each other, the extent of their testimony may be limited by privilege.
Case-By-Case Privileges
Privileges can occur in other relationships on a case-by-case basis where the following four conditions are met:
The correspondence must originate in the trust that it will not be made public.
This aspect of confidentiality must be necessary for the complete and satisfactory continuation of the relationship between the parties.
-The relationship must be one that, in the view of the group, should be fostered sedulously, and
The harm that would be caused to the partnership by the exposure of the correspondence must be greater than the benefit that would be obtained by the proper disposal of the conflict.
Scope of Legal Professional Privilege
Is correspondence with in-house counsel privileged?
In-house counsel performing the role of a lawyer shall be entitled to privilege. However, where in-house counsel act in a business capacity rather than a lawyer’s position, privilege may not apply. It is the essence of the communication and the conditions that will decide the privilege, not the title of the work.
Is correspondence with foreign trained lawyers privileged?
As long as the client receives legal advice from a competent lawyer in a foreign jurisdiction, communications would be privileged. This problem has not been dealt with thoroughly in Canadian courts. The better choice would be to retain a Canadian lawyer who would then communicate with a foreign trained lawyer and have a stronger basis for ensuring the communications are privileged.
Are there exceptions to the legal professional privilege?
There are three exceptions to privilege, which are embedded in public policy and are not regulated by the client:
No right applies to correspondence made for the purpose of assisting others to commit a crime.
Privilege can be set aside in order to give the accused person the right to make a full response and defense, where innocence is at stake, and
There is an exception to the right when there is a ‘clear, serious and immediate danger to public safety.’ This is considered an exception to public safety. The exemption applies only to potential damage and not to past harm that has already occurred.
How legal professional privilege are waived?
Privilege shall cease to exist where it has been waived; privilege may be waived directly or by implication. Waiver requires any voluntary intervention by or on behalf of the client that is inconsistent with the continued preservation of privileges.
Privilege can only be waived deliberately by the customer. Privilege can be waived on a restricted basis, reducing the amount of details that would be revealed as long as it is not misleading or disproportionately beneficial.
Privilege can also be waived by implication. Waiver by default normally happens when a party to a conflict takes a legal position that is inconsistent with retaining privilege, e.g. by issuing the legal advice it has received.
There would be an implied waiver if the following three conditions are met:
- Voluntary declaration by the privilege holder that they have requested or received legal advice on an unresolved issue between the parties and an effort by the privilege holder to rely on that legal advice in order to support a specific course of action
- The waiver often occurs if the client questions the expense or adequacy of legal services or refuses to pay for legal services. In litigation for the review or compilation of a lawyer’s bill or a negligence claim against a lawyer, right shall be waived implicitly to the degree required to assess the issues involved in such cases.
- Where privileged knowledge is revealed accidentally, Canadian courts have declined to grant a waiver of privilege. Inadvertently, lawyers who receive confidential messages usually have an ethical duty to return or destroy communications and not to use them.