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This Article deals with professional confidentiality only in the sense of civil law and not in the context of either criminal law or criminal law.

Since the confidentiality of lawyer-client correspondence is a constitutionally protected right at both the federal and provincial levels in Canada, the courts will ensure that this fundamental right is protected by appointing an independent attorney.



The Universal Concepts

Duty of confidentiality arising directly from the relationship between the lawyer and the client, and the protection from disclosure which protects the client from unauthorized disclosure to third parties of information given in confidence to counsel. It should be noted, however, that the right belongs to the client, and only the client can waive the right5



Elements of the constituent

Given the value of this substantive constitutional right, not everything conveyed to counsel by a client is inherently shielded by the protection of professional confidentiality. It is not the fact that something is transmitted to a lawyer that makes it privileged, but rather the substance, nature and intent of the communication and the context in which it is made.

There are three requirements for deciding whether a contact is privileged:

  • The contact shall be a legitimate communication between the client and the lawyer of the client, who shall work in his or her professional capacity;

  • The contact must be relevant to the provision of advice or legal opinion, or for the purposes of real or expected litigation, and

  • The parties must be considered confidential in nature.

Consequently, all information which a person is asked to provide for the purpose of obtaining a legal opinion and which is shared in confidentiality for that purpose is confidential7.



What is usually protected

Generally speaking, the following forms of knowledge are entitled to the protection of professional secrecy:

  • Details relating to the essence of the mandate of the lawyer and to a secure confidential relationship;

  • Instructions or mandates issued to the lawyer;

  • Things given to the lawyer by the client;

  • All communications between the lawyer and the client with respect to the advice sought;

  • Any legal opinions;

  • Any claims made by a witness or an expert;

  • Notes and opinions on the lawyer’s interview;

  • Judicial notes for research;

  • Communication with an expert;

  • Notes and any reports prepared for the client on the basis of correspondence with the expert;

  • Drafts of a document that has since become public, as well as negotiations and every other aspect involved in the drafting of the document.

  • Statements of fees and dates

The amount of fees paid by the lawyer is, prima facie, assumed to be protected by the right of professional confidentiality, although this presumption is rebuttable.

The presumption was quite qualified by case law in Canada, in particular with respect to the payment or non-payment of fees. If the charge statement does not include specifics of the essence of the services provided, the sum of the payments shall not be subject to professional confidentiality. However, whether payment or non-payment is applicable to the merits or whether the consumer may be adversely impacted by such disclosure, the allegation would usually be protected. Having said that, any information on the declaration which is entitled to the protection of professional confidentiality may be collected in order to protect the interests of the client.



Conclusion

Bearing in mind the value of this fundamental right in our legal system, vigilance is justified in such a way that, in cases of doubt, it is better to try and protect the details.

Thus, in the case of any uncertainty or where the nature of the file requires it, it may be prudent to retain independent counsel to review the records whose disclosure is sought and to serve as an amicus curiae to the Court in that regard. A procedure can then be sanctioned by the Court and the parties to ensure that the right to professional privacy is adequately secured.