2. Solicitor-Client Privilege

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 223-235

Contenidos

• 2. 1) Communications in Furtherance of Crime or Fraud.
• 2. 2) Innocence at Stake.
• 2. 3) Public Safety.

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A communication between a solicitor and a client, of a confidential nature and related to the seeking, forming, or giving of legal advice, is privileged information.

There is no privilege for communications that are themselves criminal or that are made with a view to obtaining legal advice to facilitate the commission of a crime or fraud.

The privilege may also be overridden where it would result in the withholding of evidence that might enable an accused to establish his innocence, or where public safety is at risk.

Solicitor-client privilege arises because lawyers have made themselves indispensable to the administration of justice. The central rationale for according this privilege was stated by Justice Cory as follows:

Clients seeking advice must be able to speak freely to their lawyers secure in the knowledge that what they say will not be divulged without their consent. It cannot be forgotten that the privilege is that of the client, not the lawyer. The privilege is essential if sound legal advice is to be given in every field. It has a deep significance in almost every situation where legal advice is sought whether it be with regard to corporate and commercial transactions, to family relationships, to civil litigation, or to criminal charges. Family secrets, company secrets, personal foibles, and indiscretions all must on occasion be revealed to the lawyer by the client. Without this privilege clients could never be candid and furnish all the relevant information that must be provided to lawyers if they are to properly advise their clients. It is an element that is both integral and extremely important to the functioning of the legal system. It is because of the fundamental importance of the privilege that the onus properly rests upon those seeking to set aside the privilege to justify taking such a significant step.²⁴The privilege belongs to the client and is for the client and not the solicitor to waive, although the client may authorize his solicitor to disclose the information. Trial judges are also called upon to ensure that lawyers, who disclose confidential communications, do so only with the express consent of the client.²⁵Safeguarding solicitor-client privilege lies at the heart of the successful challenge to section 488.1 of the Criminal Code. This section outlined

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a procedure for dealing with documents seized from lawyers, pursuant to a search warrant. The problem with the section was that by default, when a lawyer failed to claim privilege, the privilege was lost and this could occur without the client’s knowledge. This in the words of Justice Arbour was the section’s "fatal feature."²⁶The section was found to be unconstitutional and as a result struck down. To fill the void, the Court went on to craft a regime for searches, which included the requirement that "every effort must be made to contact the lawyer and the client."²⁷Wigmore outlined the scope of solicitor-client privilege in the following terms:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.²⁸The privilege protects confidential communications that arise on contact. There is no need for a formal retainer. The client’s contacts with the lawyer’s secretary or clerk are also privileged. So long as the purpose of the contact is the seeking of legal advice, the communications are protected. The contact must be a perceived professional one; casual conversation will not suffice.²⁹Communications involving salaried lawyers, in-house counsel, and government lawyers pose special problems. These lawyers have a variety of functions - some law-related and some not. Solicitor-client privilege will protect communications where legal advice is sought; it will not protect advice given by lawyers on matters outside the law. For example, in private practice many lawyers are valued more for their business sense than for their legal acumen. No solicitor-client privilege attaches to advice on purely business matters. Each situation must be assessed on a case-by-case basis. The courts need to examine the nature of the relationship, the subject matter of the advice, and the circumstances in which it is sought and rendered.³⁰

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The communications must be intended to be confidential. Therefore, the presence of an unnecessary third party undermines such intent. Having said this, a solicitor may certainly have more than one client and so long as the information is shared among those with a "common interest" or "joint interest" it will remain privileged to the outside world. However, should a dispute arise among the parties the privilege is inapplicable and the respective parties may demand disclosure.³¹The common interest exception has been expanded to cover those situations in which a fiduciary or like duty has been found to exist between the parties, such as a trustee-beneficiary, fiduciary aspects of Crown-aboriginal relations, and certain types of agency relations. The key is that the parties have the "self-same interest" or share a common goal.³²In Pritchard v. Ontario Human Rights Commissioner a complainant wanted access to a legal opinion given to the commission on her claim. She cited "joint interest." The Supreme Court of Canada found that the common interest exception did not apply because there was no shared interest between the commission and the complainant. The commission was a disinterested gatekeeper in complaints and not the advocate for the complainant.³³The privilege protects "communications" and there is a real issue as to what is captured within that term. In Maranda v. Richer the RCMP sought a search warrant to seize the fees and disbursements made by a client to a lawyer.³⁴The Crown argued that such information was not privileged. This was a critical point in that the Supreme Court in R. v. Fink had held that: "No search warrant can be issued with regards to documents that are known to be protected by solicitor-client privilege."³⁵

The Crown argued that the gross amounts of fees paid were a "pure fact" and not a communication. The Court rejected the distinction between "fact" and "communication." Rather, the Court adopted a functional approach; it was sufficient if the "fact" arose out of the solicitor-client relationship and is connected to that relationship. Where this occurs there is a presumption that the "fact," "information," or "communication" is privileged. It will then be up to the challenging party, in this case the Crown, to show that disclosure of the information would not violate the confidentiality of the relationship.

The question also arises as to whether the identity of a client is intended to be confidential. In Fink the Supreme Court noted: "The

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name of the client may very well be protected by solicitor-client privilege, although this is not always the case."³⁶In ordinary circumstances, the client’s name and address are not in any way intended to be kept confidential.³⁷However, this is not the situation when the client goes to a lawyer specifically in order to protect his identity. For example, a hit-and-run driver goes to see a lawyer seeking advice, and perhaps to act as a means to see that the victims are compensated. In these circumstances, the client certainly wants to keep his identity confidential to the rest of the world.³⁸Similarly, the privilege cannot be used to shield the client from disclosing otherwise non-privileged material. For example, the client facing a tax audit cannot send her financial records to a lawyer and seek refuge from disclosure; the privilege does not apply to documents that existed prior to the solicitor-client relationship. Nor does the privilege apply to physical objects, such as a smoking gun or stolen property - these objects are not "communications" - although the communications that take place between the lawyer and the client about these items are privileged. As one court put it, "A lawyer is not a safety-deposit box."³⁹The notorious videotapes in Paul Bernardo’s murder trial make the point.⁴⁰

These "indescribably horrible" videotapes showed the young murder victims being forced to participate in various sexual acts. Bernardo instructed his lawyer, Ken Murray, to take possession of these videotapes, which were hidden in his home. Murray, who had access to Bernardo’s home, retrieved the tapes from their hidden location. He should not have done so. Murray’s discussions with Bernardo about retrieving the tapes were covered by privilege, but the tapes were not. The videotapes pre-existed the solicitor-client relationship and they ultimately had to be turned over to the Crown.

It is said for solicitor-client privilege that "once privileged, always privileged." The privilege survives the relationship, and survives the death of the client. An exception is made for will cases, where the execution, contents, or validity of a will is in dispute. The Supreme Court of Canada expanded this exception to include the validity of a trust instrument where the settlor was deceased.⁴¹The fundamental principle

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is that in such cases the interests of the client are indeed furthered by the disclosure of the confidences.

In R. v. Jack the Manitoba Court of Appeal seized upon this principle to admit otherwise privileged communications in a murder prosecution.⁴²Jack was on trial for the murder of his wife, whose body was never found. At issue was her state of mind immediately prior to her disappearance. Three days before her disappearance, she went to see a family law lawyer. The Crown called the lawyer to prove her state of mind and future...