Solicitor-client privilege is a legal doctrine that protects written and oral communications made in confidence between a lawyer and their client for the purpose of obtaining legal advice.
“While in Canada we refer to this protection as solicitor-client privilege, it is referred to differently in other places around the world, including: attorney-client privilege (USA) or the legal professional privilege (UK).”
Solicitor-client privilege can be claimed where a written or oral communication is:
- made by a client to a lawyer;
- confidential in nature; and,
- made for the purpose of obtaining legal advice.
This protection allows the client to talk to their lawyer without fear that what they shared with their counsel will be divulged to any other person.
The Supreme Court of Canada has recognized this privilege as essential to the maintenance of a just and effective justice system. It is not simply a rule of evidence, but has become constitutionally protected as a principle of fundamental justice.
“Unjustified, or even accidental infringements of the privilege erode the public’s confidence in the fairness of the criminal justice system. This is why all efforts must be made to protect such confidences.”
– Justice Arbour, R v Fink, 2002 SCC 61.
Solicitor-client privilege can often arise informally, even prior to a lawyer being retained. However, simply accessing legal information on a lawyer’s blog, for example, does not create a solicitor-client relationship.
Privilege always belongs to the client. A lawyer cannot share any privileged communications without the informed consent of their client. Privilege continues after a lawyer has completed the legal work for their client, and extends pass the death of the client.
“It’s like everything a client tells the lawyer is put in a vault, and only the client has the combination.”
Exceptions to Solicitor-Client Privilege
There are very few situations in which solicitor-client privilege can be waived without the consent of the client. These exceptions are considered only under extraordinary circumstances.
Innocence at Stake
At trial an accused can argue that their innocence is at stake unless privilege is waived. The accused must first establish there is some evidentiary basis for the claim that a solicitor-client communication exists that could raise a reasonable doubt about the guilt. Once this is established, the trial judge must examine that record to determine whether, in fact, there exists a communication that is likely to raise a reasonable doubt as to the accused’s guilt.
Any kind of communication that itself is criminal, such as a fraudulent legal aid application, is not protected by solicitor-client privilege. Communications to obtain legal advice on how to commit criminal activities are not privileged. This aligns with the inability of a lawyer to be retained for crimes not yet committed.
A lawyer can violate solicitor-client privilege if he or she reasonably believes that there is a clear, serious and immediate threats to the public. The lawyer must consider three factors in their analysis:
- Is the a risk to an identifiable group or specific person?
- Is there is risk of serious bodily harm, serious psychological harm or death?
- Is the risk of harm imminent?
The risk to public safety will rarely outweigh the interest of upholding solicitor-client privilege, and will only be breached in the most compelling of cases.