THE TROUBLE WITH WIGMORE: A NEW APPROACH TO IMPLIED WAIVER OF SOLICITOR-CLIENT PRIVILEGE.

• Author: Cramer, Brad
• Position: Canada

1. INTRODUCTION

   In 1904-1905, John Henry Wigmore first gave the legal world his monumental treatise on evidence law, now known by the eponymous title Wigmore. (1) The fourth volume of the original treatise, published in 1905, has particular importance for this paper as it contained Wigmore's general principles of implied waiver of solicitor-client privilege. (2) These general principles, now deeply entrenched in Canadian law more than a century later, read:

   What constitutes a waiver by implication? Judicial decision gives no clear answer to this question. In deciding it, regard must be had to the double elements that are predicated in every waiver, i.e. not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his immunity shall cease, whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point, his election must remain final. (3) Generally expressed, a finding of implied waiver means that a privilege holder's voluntary use of some privileged evidence in a legal proceeding will result in a further, involuntary disclosure of related privileged evidence. By contrast, an express waiver refers to a more deliberate choice by the privilege holder to waive privilege. (4)

   The following paper argues that Wigmore's general principles of implied waiver are out of step with the "supreme importance" (5) of solicitor-client privilege in modern Canadian law and that difficulties, if not a degree of incoherence, have arisen in the case law as a result.

   This paper also argues that Canadian law should replace Wigmore's general principles of implied waiver quoted above--often summarized as a test of "fairness" or "fairness and consistency"--with a narrower reformulation. The core enquiry should be whether the privilege holder is relying on a privileged matter--in a pre-trial application, in the pleadings, or at trial--to help satisfy a relevant onus of proof. If so, this should require a full disclosure of the related privileged evidence that could operate to negate or qualify the privilege holder's allegations or assertions. Thus, there are two elements: a cause and a consequence. The first is the privilege holders reliance on a matter protected by solicitor-client privilege to help satisfy a relevant onus of proof, while the second is the resultant functional disadvantage to the opposing party in the absence of a further involuntary disclosure. It is the combination of these two elements that should result in an implied waiver of solicitor-client privilege in an adversarial legal proceeding.

   In order to employ an abbreviated reference, the proposal in this paper will be referred to as a prejudice-based approach. Although an imperfect description, it is intended to focus more squarely on the impact to the opposing party in the context of adversarial civil proceedings. The prejudice is to the opposing party's right to properly advance or defend its position without a further involuntary disclosure by the privilege holder. It is a prejudice the privilege holder has created, which in turn creates the juridical justification for the serious consequence of an implied waiver of solicitor-client privilege. The privilege holder's subjective intention in creating the prejudice is irrelevant. It is unacceptable to allow a privilege holder to both create and benefit, in the effect, from this sort of evidential disadvantage to the opposing party in the context of adversarial civil proceedings.

   This paper argues that there is no need to consider the additional factors of fairness or consistency, as they are too imprecise to reliably serve as analytical tools in the modern Canadian law of solicitor-client privilege. It is also suggested that this imprecision has contributed to decisions that have found an implied waiver of solicitor-client privilege despite the absence of any functional disadvantage to the opposing party, as discussed in Sections IV and V of this paper.

   The use of prejudice-based approach as a shorthand reference in this paper is not intended to suggest that disadvantage to the opposing party, without more, could be sufficient to cause a waiver of privilege. The starting point of the analysis should be whether a privileged matter is a relevant element of a privilege holder's cause of action, affirmative defence or affirmative reply, or a relevant element of a privilege holder's effort to obtain or prevent an order in an application.

   As discussed in Section II of this paper, the breadth of Wigmore's general principles of implied waiver can be seen as reflecting his mixed views regarding the role and impact of solicitor-client privilege in legal proceedings. Notably, Wigmore acknowledged the influence of the English jurist Jeremy Bentham, who supported the abolition of solicitor-client privilege, even though Wigmore clearly did not share Bentham's conclusion.

   Section III of this paper sets out the reformulation of a prejudice-based approach in more detail and refers to case law that lends support to this reformulation. This paper argues that it is possible to arrive more quickly and predictably at the outcomes in much of the case law through the narrower reformulation proposed in this paper. This reformulation is intended to help simplify the analysis and eliminate discretionary, case-by-case factors, while continuing to lead to an implied waiver of solicitor-client privilege when this serious consequence is genuinely warranted.

   The focus of this paper is the recurring question of when a step taken in Proceeding A should result in an implied waiver of solicitor-client privilege in Proceeding A. There is a different, less common group of waiver issues that is beyond the scope of this paper to properly explore. For example, sometimes the issue concerns disclosure to a third party, or disclosure in a different legal proceeding or in a pre-litigation public statement. Issues can arise over whether a waiver or loss of confidentiality has occurred and if so, what the consequences should be for new or other proceedings. (6) Although these cases may refer to Wigmore's general principles of implied waiver, there can be a number of other factors to consider, including, inter alia, principles concerning limited waiver, common interest privilege or necessary third parties (that is, protected forms of communication that preserve confidentiality); the relevance of misconduct by a third party in possession of privileged material; or (if a public statement) the nature of the resultant causes of action against the privilege holder. (7)

2. WIGMORE, IMPLIED WAIVER, AND MODERN CANADIAN LAW

   At the outset, it is helpful to clarify the sequence and origin of the editions of Wigmore's treatise. Despite the multiple editions, stretching over six decades, the treatise's general principles of implied waiver of solicitor-client privilege from 1905 have remained the same.

   After the original treatise, Wigmore published his own second (1923) (8) and third (1940) (9) edition. Decades after Wigmore's death in 1943, a fourth edition of his treatise was created, which is the one best known to modern lawyers. The revised volumes that comprise this edition began with Volume 8, revised by John McNaughton in 1961; next came the revisions to Volumes 2 to 9, revised by James Chadbourn between 1970 and 1981; the fourth edition was completed by the revision of Volume 1 in 1983 by Peter Tillers. (10) The revised volumes as a whole followed the basic organization of Wigmore's own prior editions. (11)

   McNaughton's 1961 revision of Volume 8, which is often referred to as "McNaughton rev. 1961" in the case law, includes the fourth edition's section on implied waiver of solicitor-client privilege. (12) Wigmore's general principles of implied waiver as set out in the McNaughton Revision are essentially identical to Wigmores own version in his original, second, and third editions. (13)

   Thus, although modern cases or legal writers seem to invariably cite the McNaughton Revision when quoting Wigmore's general principles of implied waiver, (14) in fact these principles were formulated in 1905, in Wigmores original treatise. The BC Court of Appeal, quoting from the McNaughton Revision, recently described these general principles as "settled law". (15)

   At the turn of the 20th century Wigmore was in his early forties, the dean of Northwestern Law School in Chicago, and a prodigious, "supremely self-confident" scholar. (16) His original treatise on evidence law involved ten or more years of work, spanned four lengthy volumes, and included approximately 40,000 judicial citations. (17) Effusive praise for Wigmore's new treatise came quickly. A notable example appeared in the 1905 Harvard Law Review: "It is hardly too much to say that this is the most complete and exhaustive treatise on a single branch of our law that has ever been written." (18) In the century that has passed since its original publication, Wigmore's treatise has grown increasingly influential in Canada. (19)

   Wigmore's general principles of implied waiver have given rise to a concept of fairness to help decide whether an implied waiver of solicitor-client privilege has occurred. For example, Lederman, Bryant & Fuerst, The Law of Evidence in Canada, immediately after quoting the McNaughton Revision's reiteration of Wigmore's general principles of implied waiver, states:

   Whether intended or not, waiver may occur when fairness requires it, for example, if a party has taken positions which would make it inconsistent to maintain the privilege.... The notion of fairness has also been invoked as...