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Solicitor-Client Privilege

Solicitor-Client Privilege

I always thought that the concept of solicitor-client privilege was essentially simple. The solicitor has a duty to his/her client that anything said is confidential.

Although I am not a lawyer, I am invited to a legal symposium every year. To the best of my knowledge, I am the only non-lawyer in attendance. This is actually more of an advantage than it appears.
The presentations are designed for a legal audience. However, being a non-lawyer gives me a different perspective with what is stated. This year, one of the topics was on ‘Privileges’. As an outsider, I thought I knew about solicitor/client privilege but this was the first time that I heard a detailed discussion regarding it. The following is a laypersons understanding of this subject as it relates to Canadian law. Any errors are mine and mine alone.

As I understand it, solicitor-client privilege exists when communications have been made between a client and a lawyer, in confidence, with the purpose of obtaining legal advice. Further, the confidentiality of these communications has not been waived and there is no fraud involved. The client is in control. Only the client can choose to disclose the communications. The solicitor (lawyer) cannot disclose the content without the express consent of the client.

Solicitor-Client privilege used to be regarded as an ‘evidentiary’ privilege. By that, it was meant that a solicitor could not be compelled to disclose certain information and was entitled to prevent others who shared this privileged information from disclosing it. This has changed. Based on a Supreme Court ruling it has even more significance. It is now considered a ‘fundamental civil and legal right’ and is part of our Charter rights.

Surprisingly, I learned that there are different types of solicitor-client privilege or, as they say, the devil is in the details.

Limited Disclosure to Third Parties: A business deal might (an often does) have high and unusual complexity. In order for both parties to proceed and to understand the ramification, it may be necessary to have a lawyer provide ‘expert’ translation.

Litigation Privilege: This is different from solicitor-client privilege. It protects communication between a lawyer and third parties (not the client) for the purpose of preparing for litigation.

Joint Client Privilege: In this case, two or more ‘clients’ retain the same lawyer on the same matter. As such there can be no solicitor-client privilege between each client. All clients are entitled to be involved in or aware of all communications that take place, even if the communication is only to one of the clients.

Mediation Privilege: The communications and details that result in a settlement are considered confidential. This includes documents shared, mediators’ notes and communications with the mediator. For this to exist, a ‘solicitor’ may not be necessary. On the other hand, a court proceeding may find that this privilege does not exist when a solicitor has not been used.

This is strictly an overview. There are many details and ramifications involved. There are also variations of solicitor-client privilege. For example, mediation privilege may be considered a sub-set of Settlement Privilege which I have not discussed.The best advice I can give is the take-away from the symposium on this topic. Discuss it with your solicitor so you are clear what is being offered and protected.

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