Solicitor-Client Privilege – a Principle of Fundamental Justice

When you meet with a lawyer for the first time, the lawyer will likely tell you that everything you say to him or her is confidential.  Have you ever wondered why this is?  Or, perhaps you have wondered how confidential?

Communications between a lawyer and a client are governed by a long-established and special degree of confidentiality which has, in recent years, been elevated to an almost quasi-constitutional right.

The definition of solicitor-client privilege that continues to be used frequently, despite its age, was coined by John Henry Wigmore, an American jurist and expert in evidence.   The definition is as follows:

“Where legal advice of any kind is sought from a professional legal advisor, in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the privilege be waived.”

Much has been written about the importance of solicitor-client privilege and this short blog post cannot possibly provide a comprehensive analysis,  just a short snapshot.  In the simplest sense, however, solicitor-client privilege is absolutely necessary for the proper operation of our justice system and the rule of law.  This is  because it permits lawyers to provide committed client representation with undivided loyalty to the lawyer’s client.  A lawyer needs to have full and frank discussions with his or her client in order to provide that proper representation.

A recent Supreme Court of Canada decision (Canada A.G. v. Federation of Law Societies of Canada, [2015] S.C.J. No. 7) looked at the importance of solicitor-client privilege in the context of Canada’s federal anti-money laundering regime (which would have required disclosure of client names and certain other particulars in the context of certain financial transactions).   The Supreme Court ruled unanimously that the 2008 regulations requiring this disclosure were unconstitutional as they applied to Canadian lawyers and law firms.

There are only a few, very narrow, exceptions to solicitor-client privilege:  where there is an imminent threat to public safety, or where a party’s “innocence is  at stake.”

In the end, you can be confident that your conversations and communications with your lawyer are highly confidential, and that they need to be.

If you are interested in a comprehensive discussion of solicitor-client privilege in Canada, you may be interested in a paper prepared by Professor Adam Dodek of the University of Ottawa for the Canadian Bar Association.

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