December 2, 2015
One of the first things a client learns when visiting a lawyer is that everything he or she tells the lawyer will remain confidential. The confidentiality of communications between client and lawyer is necessary to ensure the client is comfortable providing candid information to their lawyer and so the lawyer can give confidential advice and legal representation. Not only do lawyers have a professional duty to maintain their client’s confidence, the confidential communications are subject to solicitor-client privilege. However, clients need to know there are limits and exceptions to the confidential nature of their communications.
The concepts of confidentiality and solicitor-client privilege are often confused. Confidentiality is a duty owed by lawyers to clients; it covers all information concerning the business and affairs of the client in the course of the professional relationship. Privilege on the other hand, is an evidentiary rule of law and a protected right. Solicitor-client privilege is a type of privilege that attaches to some communications between a lawyer and a client, and is an exception to the general principle that all relevant evidence is admissible in court. It provides a legal right to withhold otherwise relevant information from the court or an opposing party.
This difference means that while all communications between a lawyer and his/her client are confidential, not all communications are privileged such that they would be protected from disclosure in a lawsuit. According to the Supreme Court of Canada in the case of Pritchard v Ontario (Human Rights Commission), for solicitor and client privilege to apply, the party asserting the privilege must establish the communication meets the following criteria:
(a) the communication was between a solicitor and client;
(b) it must entail the seeking of legal advice; and,
(c) the advice sought must be intended to be confidential by the parties.
When solicitor-client privilege is challenged, the onus is on the party asserting the privilege to establish that privilege should protect the communication in question.
Protections for solicitor-client privilege are strongly enforced in Canada. The Supreme Court recently affirmed in Ontario (Public Safety and Security) v Criminal Lawyers’ Association, that the solicitor-client privilege is a “fundamental and substantive rule of law” given the importance to the public interest in maintaining a trusting solicitor-client relationship. However, it is important to understand there are limits to the privilege in that communications and documents cannot be arbitrarily cloaked in privilege simply by involving a lawyer.
Beyond the technical limits of the privilege, there are also limited circumstances where solicitor-client privilege will not apply. For example, where communications must be shared due to a clear, serious and imminent threat to public safety, or where the lawyer must disclose limited information about the client to defend herself from allegations of misconduct. In such instances, a lawyer may be permitted to waive privilege. As such, while most communications between client and counsel will never be revealed (unless the client wishes them to be), it is important to understand that the confidential nature of solicitor-client communications is not all-encompassing, and is not absolute.
*This post was authored by Robin Nobleman, articling student