Solicitor-client privilege is an important legal concept that allows clients to trust their lawyers with private information. The Supreme Court of Canada has called it, “a principal of fundamental justice and civil right of supreme importance in Canadian law.” Given its importance to the relationship, we think it is important for individuals to understand what solicitor-client privilege is.
What is solicitor-client privilege?
Communications and documents protected by solicitor-client privilege are confidential as between the client and the lawyer. 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.
In order to claim solicitor-client privilege, and keep otherwise relevant information private, three preconditions must be met. The communication must be:
- Between lawyer and client;
- For the purpose of seeking or giving or legal advice; and
- Intended to be confidential by the parties.
Solicitor-client privilege protects legal advice seeking/giving communications between the lawyer and client, as well as any related materials.
What is not covered by privilege?
Not every communication that passes between a lawyer and her client is privileged, as it must relate to legal advice. For example, communications from a lawyer providing business advice or a restaurant recommendation would not necessarily be privileged.
Privilege also does not apply to communications that are criminal, or to communications made with a view to obtaining legal advice in order to facilitate the commission of a crime. Watch out Saul Goodman!
Legal information abounds in the information age. It is easy to access legal information on firm blogs and easy to contact lawyers via the web. Information communicated to a lawyer, for the purposes of seeking legal advice, will generally trigger the lawyer’s duty of confidentiality. This means that even if the individual does not end up retaining the lawyer, the lawyer will have a duty to keep information communicated to them confidential. Solicitor client relationships are often established informally, prior to a retainer every having been signed. However, simply accessing legal information on a lawyer’s blog, for example, does not trigger a relationship.
Solicitor-client privilege belongs to the client. This means that, in general, only the client can waive the privilege. Waiver must be done voluntarily. A compelled or unintended disclosure of privileged information does not waive the privilege. Privilege can, however, be broken by a lawyer in limited circumstances. For example, when there is 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.
Privilege, confidentiality, privacy and the workplace
Issues of privacy and confidentiality often arise in the workplace. Distinct from your relationship with your lawyer, the majority of what takes place at work will not be confidential. This is generally true even where there are sensitive allegations of harassment.