September 14, 2022
No, this is not a Buzzfeed listicle. Less fun, more important.
We have written before about solicitor-client privilege being central to our system of justice. There is more to write, because beyond the basics it gets technical and even though the basic importance may be obvious, the devil is in the details, as the saying goes.
Why 17 things?
Because in Wintercorn v. Global Learning Group Inc., a very experienced superior court judge with a way with words includes a seventeen-point breakdown of the “general principles governing solicitor-client privilege” which is brief (for a judge) and less technical than most explanations we have read. So, we are going to reproduce his list, omitting his citations of the prior cases he relies upon for each point. We have bolded some phrases we think are especially worth noting and added a few explanatory footnotes[1]. We will also write future articles about some of the exceptions, such as the “fraud exception” central in the case. If you have suggestions as to which aspects of privilege we might include in future articles, please let us know.
Paragraph 45 of Wintercorn, as written by Justice Benjamin T. Glustein:
[45] There is no dispute as to the general principles governing solicitor-client privilege. I summarize the following relevant principles:
(i) Solicitor-client privilege is a principle of fundamental justice;
(ii) The protection associated with solicitor-client privilege is “indispensable to the continued existence and effective operation of Canada’s legal system. It ensures that clients are represented effectively and that the legal information required for that purpose can be communicated in a full and frank manner”;
(iii) Solicitor-client privilege must “remain as close to absolute as possible”;
(iv) Solicitor-client privilege applies to all communications between solicitor and client that entail the seeking or giving of legal advice and that are intended to be confidential by the parties; [2]
(v) Not all communications between lawyers and clients are privileged: the lawyer must be acting in her professional capacity as a legal advisor;[3]
(vi) The onus of establishing that privilege exists is on the party asserting it. A defendant cannot establish privilege “by merely asserting it … Broad privilege claims will fail if the party asserting the privilege has failed to meet its burden of proof”;
(vii) Solicitor-client privilege attaches not only to the advice itself, but to all communications passing between client and solicitor relating to the provision of legal advice;
(viii) Documents, information, and communications shared or created in a “continuum of communications” for the purpose of obtaining legal advice are privileged. This includes documents that are a “necessary step” in the process of receiving legal advice, that are “incidental” to the obtaining and giving advice, and/or that, if produced, would tend to reveal that advice;
(ix) Solicitor-client privilege also protects a lawyer’s work product and prohibits the disclosure of the contents of their client file where that file is compiled with the knowledge or skill of the lawyer and/or the disclosure of the contents of the file would reveal what the lawyer considered in providing legal advice to the client;
(x) There is no distinction between privileged “communications” and unprivileged “facts”. Instead, there is a rebuttable presumption that “all communications between client and lawyer and the information they shared would be considered prima facie confidential in nature;[4]
(xi) A corporation holds the same privilege as an individual;
(xii) Just as an individual’s privilege survives death[5], a corporation’s privilege survives dissolution;
(xiii) The right to solicitor-client privilege belongs to the client. Privilege can only be waived by an individual with legal authority to waive privilege as the client;[6]
(xiv) The onus to prove waiver or another exception is on the party seeking to displace privilege;
(xv) Lawyers have a professional duty to claim and maintain privilege on behalf of their clients. It is improper for a lawyer not to claim privilege on behalf of their client unless it has been shown that privilege has been properly waived;
(xvi) Where a third party seeks production from a lawyer of “information pertaining to a solicitor-client relationship”, the “proper course for counsel to follow … is to refuse to do so” unless the client has given clear, valid, and explicit consent to disclose; and
(xvii) Courts resolve conflicts about whether solicitor-client privilege covers a given document in favour of protecting privilege.[7] The stakes are high in this context. Invoking solicitor-client privilege necessarily imports constitutional and institutional considerations, not merely the balance of convenience or fairness among the parties. Courts “err on the side of non-disclosure if unable to determine whether a communication is or is not privileged”.
(emphasis added)
We hope that this informs you enough to avoid many of the pitfalls. If you need more guidance, Weilers LLP can help you.
The litigation team at Weilers LLP have had significant specific experience in arguing issues of privilege before the courts. Our in-depth experience in this area may give you an advantage if privilege is going to be an important issue in your case. It also demonstrates the depth and range of expertise available at Weilers LLP. If you are looking for serious lawyers, it may be our privilege to represent you.
[1] Very few. We want to reduce confusion, not add to it.
[2] Because intent is always fun to try to prove or disprove. But see footnote 4.
[3] As opposed to giving business or financial advice, or conspiring to commit a crime, for example.
[4] Does this solve our problem of intent? Maybe the subject of a future article?
[5] TV lawyers and judges often seem to have a different opinion, saying the privilege dies with the client. A good reason not to get your legal advice from fictional lawyers.
[6] To protect both client and lawyer when a document is accidentally sent to the other side – it does happen occasionally.
[7] Probably the most important takeaway here.