What is Lawyer Client Privilege?

Lawyer-Client Privilege

In Hollywood legal thrillers, the concept of lawyer-client privilege is often used as a plot point: the lawyer knows too much but cannot reveal what he knows because the information is privileged. The tension in the movie is sure to rise, and a car chase may ensue! But what exactly is this privilege, and how does it function in Canada? It’s worth taking a deep dive into the subject in order to understand what constitutes privileged communication in our country and what factors may affect it.

The Supreme Court of Canada has called solicitor-client privilege “a principle of fundamental justice and civil right of supreme importance.” (R. v. Lavallee, Rackel & Heintz, Barristers and Solicitors, and Andrew Brent Polo). The Court has held that solicitor-client privilege must be as close to absolute as possible and that there is a reasonably high expectation of privacy regarding solicitor-client privileged communications.

What Is Solicitor-Client Privilege?

“Solicitor-client privilege” refers to communication between a lawyer and a client for purposes of seeking or providing legal advice that is meant to remain confidential. It may include documents as well as conversations in person, over the phone, over voicemail, email or text message. This means that what might otherwise be relevant evidence or information, admissible in court or required to be disclosed to the other side in a lawsuit, can be kept confidential.   

This privilege belongs to the client and can be waived only by the client; the lawyer cannot waive it except under very specific circumstances. In Canada, solicitor-client privilege may be lost under the following circumstances:

• If the client voluntarily discloses the information to a third party. (Not including disclosure to a person who has a joint interest in the litigation, or disclosure of confidential documents by a company to its auditor.)

• The communication with the lawyer involves advice in order to commit a future crime. (R. v. John Campbell and Salvatore Shirose)
• The lawyer has a reasonable belief that there is an imminent risk to an identifiable person (or group) of death or serious bodily harm.
• Disclosure is necessary in order to prevent a wrongful conviction.
• The lawyer must disclose certain information about the client in order to defend against allegations of misconduct.

Solicitor-client privilege encourages clients to have frank discussions with their lawyers, which provides the lawyer with a full picture of the circumstances of the case. The solicitor-client privilege applies even in cases where a client contacts a lawyer to discuss a case but does not go on to retain the lawyer. (Solicitor-client relationships can be considered to have been established prior to a retainer having been signed. However, a clear relationship of some kind must exist; simply obtaining information from a lawyer’s website, for example, would not be sufficient to establish a relationship.)

This privilege is permanent, which means that even after the relationship has ended, the communications are protected. In fact, solicitor-client privilege may continue even after the death of the client. Please note, however, that not all communication between a lawyer and their client is privileged; to be covered by privilege, the communication must relate to legal advice. An email from a lawyer providing business advice to a client would not necessarily be privileged, for example, nor would a casual conversation on a golf course with a person who happens to be a lawyer. In addition, it’s important to note that the privilege covers communication, and not facts or objects.

Confidentiality

Often, the principle of solicitor-client privilege is lumped in with the lawyer’s duty of confidentiality. Although both of these principles work to protect client information from disclosure, they are different concepts that spring from different sources. A lawyer’s duty of confidentiality is an ethical responsibility that extends to all of the information they learn working for their client. (It doesn’t matter whether or not this information was confidential or not prior to the lawyer’s learning it, or where the information came from.) The duty of confidentiality is based in the codes of conduct in the provincial law societies, and in common law. There are no clear exceptions to the duty of confidentiality. As with solicitor-client privilege, a client may consent to the disclosure of information, and, in certain circumstances, may be found to have waived the lawyer’s duty of confidentiality

If you have been injured in an accident and are concerned that confidential information may come to light if you work with a lawyer, consider that legal professionals are bound by both the solicitor-client privilege and a duty of confidentiality. Talk to a personal injury lawyer today to learn more about these principles and how they might apply in your situation. Personal injury lawyers offer a free initial consultation, so you can ask questions and get information about your options for proceeding. Contact Sokoloff Lawyers today and speak to one of our personal injury lawyers.