What is Solicitor-Client Privilege?
One of the fundamental principles in law is solicitor-client privilege – that is, communications between a lawyer and their client that is related to the seeking, forming or giving of legal advice. When speaking to a lawyer, those conversations are privileged, which means confidential. The basic rationale for this class privilege is that in order to receive comprehensive and meaningful legal advice, the client must be confident that discussions with their lawyer will not be disclosed. It promotes full and frank discussions.
The conditions necessary to establish the privilege were identified in the seminal case of Solosky v. The Queen [1980] 1 SCR 821.The communication over which privilege is asserted must:
(a) be a communication between lawyer and client;
(b) which entails the seeking or giving of legal advice; and,
(c) which is intended to be confidential by the parties.
What does solicitor-client privilege protect?
The nature or content of the communication must be for legal advice. The privilege is not confined to just telling the law, but also includes advice regarding what should be done in the relevant legal context.
There is no distinction between privileged “communications” and unprivileged “facts”. Instead, there is a rebuttable presumption that all communications between client and lawyer and the information they shared would be considered prima facie confidential in nature.
Solicitor-client privilege protects communications even with other members of the firm, such as legal assistants and law clerks. With respect to third parties, for solicitor-client privilege to apply, it must be intended to be confidential. For instance, if a parent, spouse or friend is present during the communication, the confidential intention must be present in order for the communication to be protected. The information that is being shared is among those with a common interest, who are trusted.
How long are the communications protected?
Solicitor-client communications are permanently protected, meaning that even at the conclusion of the case or end of the lawyer-client relationship, those discussions remain confidential. Privilege is attached to anything that was said even after the death of a client.
What are exceptions to solicitor-client privilege?
While solicitor-client privilege is assiduously protected, there are limits and exceptions. There are some situations where a lawyer can break privilege. These exceptions are very strict and only apply in very rare circumstances.
- Public Safety Exception: Public safety concerns set aside solicitor client privilege when a lawyer reasonably believes there is a clear, serious, and imminent threat to the public.
- Innocence of the Accused Exception: The exception applies when the innocence of the accused is at stake. Disclosure is necessary in order to prevent a wrongful conviction. Courts have interpreted this exception very strictly and the exception is likely to apply only in the rarest of circumstances.
- Committing a Crime Exception: Communications that are made with the intention of obtaining legal advice to conduct a crime or fraud will not be protected. One cannot ask a lawyer how to commit a crime – that conversation will not be protected.
Can privilege be waived?
It is important to note that privilege belongs to the client, as it was created for the client’s benefit. A solicitor cannot decide to waive privilege, only the client can. A client’s waiver of solicitor-client privilege must be clear, and they must completely understand the implications of the result. This requires that the client know the existence of the privilege and voluntarily express an intention to waive it.
Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. We have the confidence and skill to advance your medical malpractice claim to settlement or trial while helping you navigate the complex medical, legal, and insurance issues.
Our experience, commitment to excellence, and reputation have long been recognized. Our founding partner, Richard M. Bogoroch, has been recognized as a leading personal injury lawyer by The Canadian Legal Lexpert Directory and by The Best Lawyers in Canada. The Canadian Legal Lexpert Directory and The Best Lawyers in Canada are two highly regarded lawyer rating publications.
If you or your loved one believes that you are a victim of medical malpractice or negligence, reach out to a medical malpractice lawyer to understand if you too have a claim. Please contact us at Bogoroch & Associates LLP for a free consultation.
