Clients often ask whether I, as their lawyer, will be keeping what they tell me a secret from immigration authorities, the media, their family and/or their friends. I assure them that they have nothing to be concerned about, because lawyers, and the state, are bound by the rules of solicitor-client privilege.
Overview of Solicitor-Client Privilege
As the Supreme Court of Canada reiterated in Canada (National Revenue) v. Thompson, solicitor-client privilege is a a principle of fundamental justice in Canada.
There are several aspects to solicitor-client privilege.
First, the confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client’s consent.
Second, unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person’s right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.
Third, when the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.
Fourth, laws which abrogate solicitor-client privilege must be interpreted narrowly.
Fifth, solicitor-client privilege is a right that belongs to, and can only be waived by, a client of a legal professional.
Where an individual seeks legal advice of any kind from a lawyer, then the communications relating to that purpose are permanently protected from disclosure.
The Professional Conduct Handbook
The Professional Conduct Handbook governs the conduct of British Columbian lawyers. It contains many legally binding guidelines for lawyers. Some of the relevant ones that clients should know are:
DUTY OF CONFIDENTIALITY
1. A lawyer shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship, regardless of the nature or source of the information or of the fact that others may share the knowledge, and shall not divulge any such information unless disclosure is expressly or impliedly authorized by the client, or is required by law or by a court.
2. A lawyer shall take all reasonable steps to ensure the privacy and safekeeping of a client’s confidential information.
3. A lawyer shall not disclose the fact of having been consulted or retained by a person unless the nature of the matter requires such disclosure.
4. A lawyer shall preserve the client’s secrets even after the termination of the retainer, whether or not differences have arisen between them.
CONFIDENTIAL INFORMATION NOT TO BE USED
6. A lawyer who engages in literary work such as an autobiography or memoirs shall not disclose confidential information.
7. A lawyer shall not disclose to one client confidential information concerning or received from another client in a different matter, and shall decline employment or withdraw from a retainer which might require such disclosure.
8. A lawyer shall avoid indiscreet conversations or gossip, and shall not repeat gossip or information about a client’s affairs, even though the client is not named or otherwise identified.
DISCLOSURE AUTHORIZED BY CLIENT
11. A lawyer may:
(a) with the express or implied authority of the client, disclose confidential information, and
(b) unless the client directs otherwise, disclose the client’s affairs to partners, associates and articled students and, to the extent necessary, to legal assistants, non-legal staff such as secretaries and filing clerks, and to others whose services are utilized by the lawyer.
DISCLOSURE TO PREVENT A CRIME
12. A lawyer may disclose information received as a result of a solicitor-client relationship if the lawyer has reasonable grounds to believe that the disclosure is necessary to prevent a crime involving death or serious bodily harm to any person.
DISCLOSURE REQUIRED BY LAW
13. A lawyer who is required by law or by order of a court to disclose a client’s affairs shall not divulge more information than is necessary.
14. A lawyer who is required, under the Criminal Code, the Income Tax Act or any other federal or provincial legislation, to produce or surrender a document or provide information which is or may be privileged shall, unless the client waives the privilege, claim a solicitor-client privilege in respect of the document.
Canada (Citizenship and Immigration) v. Mahjoub recently summarized the jurisprudence for the waiver of solicitor-client privilege. The principles are:
(a) waiver of privilege as to part of a communication will be held to be waiver as to the entire communication.
(b) where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost.
(c) in cases where fairness has been held to require implied waiver, there is always some manifestation of a voluntary intention to waive the privilege at least to a limited extent. The law then says that in fairness and consistency, it must be entirely waived.
(d) the privilege will deemed to have been waived where the interests of fairness and consistency so dictate or when a communication between a solicitor and client is legitimately brought into issue in an action.
(e) the onus of establishing the waiver rests on the party asserting waiver of the privilege.