A principle of fundamental justice is attorney-client privilege. It is a substantive right central to the proper functioning of the legal system, more than just a rule of evidence, that enables clients to communicate candidly and in trust with their lawyers, knowing that these communications are protected from disclosure.
To correspondence, attorney-client privilege applies:
Between an attorney and a client,
Produced during the process of getting legal advice or offering it, and
These are intended by the client and the attorney to be confidential.
The Supreme Court of Canada has ruled that the attorney-client privilege must be as close to absolute as possible and that the protection of attorney-client protected communications is fairly highly expected.
Occasionally, in compliance with legal requirements, lawyers obtain inquiries from the Canada Revenue Agency (“CRA”), the Maintenance Enforcement Program (“MEP”), the Real Estate Council of Alberta (“RECA”) or other similar bodies for information relating to their former or current clients. These demands purport to compel lawyers to comply with the law, but enforcement can violate the privacy of attorney-client privilege and confidentiality.
The attorney has a professional responsibility to protect the sensitive and protected data of the client.
In scope, secrecy is wider than privilege. All client information, though it may or may not be privileged, is confidential and deserves protection. The following are examples of sensitive documents that may or may not be privileged:
Fax cover sheets which do not request or offer legal advice without attached materials
Trust account ledgers of Lawyer
In a deal with real estate:
Proof of an act or transaction, including evidence of whether, on behalf of a client, a lawyer keeps or has paid or obtained funds;
Account books, ledgers of confidence, canceled cheques, deposit slips
Agreements for sale and acquisition
Instruction for mortgage lenders
Correspondence to opposing counsel
Adjustment statements, tax certificates, details on zoning
Letters of reporting which are truthful in nature and do not provide legal advice
Privilege belongs to the client, not to the lawyer, and it remains whether or not the client asserts a privilege argument. The privilege claim decision must be that of the client, not of the lawyer, irrespective of the opinion of the lawyer on the merits of the possible claim.
Judicial rulings have defined communications that are protected by attorney-client privilege or are not protected by it. The Court’s judgments below are based on case-specific evidence and can differ according to the circumstances. In one scenario, what may be deemed privileged may not be deemed privileged in another.
The following documents were considered to be privileged by the courts:
Billings of a lawyer for fees and disbursements in a court case
A lawyer’s account statements specifically relevant to the finding, formulating or providing of legal advice
Billing records relating to the creation and functioning of a relationship
Records specifically prepared for arbitration purposes “Without Prejudice”
A legal opinion written by the in-house lawyer of a human rights tribunal
Steps to consider when a confidential request for material or information is submitted and may be subject to an attorney-client privilege claim:
Determine the demand focus: are you or your customer? To do so, contact the customer and log your efforts.
Advise the client to obtain impartial legal counsel if the lawyer is the subject of the appeal.
If the customer is the object of the demand, analyze the circumstances of the customer and negotiate with the customer thoroughly and openly the possibility of arguing attorney-client privilege successfully.
Seek advice on whether to waive or assert privilege.
Obtain written proof of the customer’s orders if the customer waives privilege and provides instructions to deliver the requested documents. Documents requested can be created.
Obtain written notice of the client’s instructions if the client wants to assert right. Make a claim on behalf of the client for privilege and do not provide the documents requested.
If the client cannot be contacted to receive orders, under all cases, make a claim of privilege and do not provide the documents requested. While some circumstances make it unlikely that a claim of privilege will be successful, where it would not usually exist, specific facts could produce privilege.
To contact the client and log your efforts, continue to make fair efforts.
If the requesting party submits an application to the Court for an enforcement order, it shall appear on the application and, intact, take the documents submitted with you. It is the duty of the Judge, not the role of the lawyer who has possession of the papers, to decide the question of privilege.
Keep the client file copy for your documents.
If the client could not be reached in order to receive privilege orders, notify the Court accordingly.
On behalf of a client, making a claim of privilege can subject a lawyer to a claim for costs or penalties. Notify the Law Society of Alberta in these cases, so it can decide whether it can request leave to interfere or take other action on your behalf.