Keep it to Yourself! Solicitor-Client Privilege and Unintended Waiver
As previously discussed, the law in Canada permits people to seek confidential legal advice. Confidential communications between a lawyer and client are a “fundamental civil and legal right“. This right permits individuals to not only get the advice they need but also to claim ‘privilege‘ over these discussions and to not disclose them in the course of a lawsuit.
This privilege can be waived, however, if the person receiving the advice chooses to discuss the nature of the privileged communications. This was demonstrated in interesting reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Biehl v. Strang) the Plaintiff apparently advanced the Defendant Mr. Strang $1.6 million. The lawsuit involved allegations of unjust enrichment and whether there was an enforceable contract as between the parties. The Plaintiff sued two individual and two corporate defendants.
In the course of the lawsuit one lawyer prepared a statement of defence on behalf of Mr. Strang and the corporate defendants. Eventually a new lawyer was brought on to represent the corporate defendants. Mr. Strang, by the time he attended examination for discovery, was self represented.
At his discovery Mr. Strang was asked if he agreed with the contents of the Statement of Defence. He disagreed with some of the contents. He was then asked whether he was “giving instrucitons (to his then lawyer) about the drafting of the statement of defence“. He did not object to this question and replied that he did not give instructions as to the contents of the defence.
The Plaintiff’s lawyer then brought a motion for access to the former lawyer’s records arguing that the Defendant’s lack of objection in discussing this topic constituted a waiver of privilege. Madam Justice Arnold-Bailey agreed and ordered limited production of otherwise privileged documents. The court reviewed the law of solicitor-client privilege and waiver at length at paragraphs 31-68 of the reasons for judgement. In concluding that privilege had been waived the Court provided the following reasons:
 To summarize, in the present case Mr. Strang and the corporate defendants jointly retained Mr. Johnson to represent them. In the course of doing so, Mr. Johnson prepared and filed a joint statement of defence. Mr. Strang, by his answers to questions at examination for discovery, denied that he had provided instructions to Mr. Johnson as to the statement of defence and impliedly waived solicitor-client privilege in relation to instructions provided to Mr. Johnson regarding the preparation of the statement of defence. I have found that Mr. Strang waived his own privilege but not that of the corporate defendants. However, the corporate defendants will waive privilege as to the preparation of the statement of defence if they call Mr. Johnson. They seek to do so for the limited purpose of determining whether Mr. Strang approved the statement of defence.
 The position of the plaintiff is that he is entitled to all the material in the possession of Mr. Johnson and his law firm that is relevant and material to the preparation and content of the statement of defence.
 The position taken by the corporate defendants is too narrow; the position taken by the plaintiff is too broad. The somewhat unusual facts in this case dictate a very cautious and considered approach. The record is clear that as of the June 2010 discovery of Mr. Strang, he and the corporate defendants no longer jointly retained Mr. Johnson, the lawyer with whom they had privileged communications. This speaks to a waiver of privilege by Mr. Strang that is very limited in scope. Mr. Strang ought not to be considered to have waived solicitor-client privilege over anything more than the matters he spoke directly about.
For a more in depth look at this topic you can review the Canadian Bar Associations recently released paper on Solicitor Client Privilege in Canada.