Tag: solicitor client privilege

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:

[69]    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.

[70]    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.

[71]    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.

Litigation Privilege and Solicitor-Client Privilege Explained

In BC Lawsuits one of the primary goals of the Rules of Court is to require document disclosure to put the parties on a level playing field with respect to the facts and to prevent trial by ambush.
Disclosure requirements, however, need to compete with the equally compelling doctrine of privilege which permits parties to lawsuits the right to refuse production of certain classes of otherwise relevant documents. Two categories of privileged documents which are not always clearly understood by litigants are those of ‘solicitor client privilege‘ and ‘litigation privilege’.
Today the BC Supreme Court released reasons for judgement explaining the difference between these classes of privileged documents.
In today’s case (Lougheed Estate v. Wilson) the Plaintiff sought access to certain documents which the Defendant refused to produce on the basis on litigation privilege.  In ordering that the documents be produced Mr. Justice Grauer did a great job in explaining the difference between solicitor-client and litigation privilege.  I reproduce this summary below:

(b) Solicitor-client privilege

[26] Solicitor-client privilege, or “legal advice privilege”, is conceptually different from litigation privilege.  One of the important differences is that solicitor-client privilege applies only to confidential communications between the client and his or her solicitor: Blank v. Canada, [2006] S.C.R. 319, 2006 SCC 39 at para. 28, citing with approval Professor R.J. Sharpe (now Sharpe, J.A.):  “Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of Upper Canada (1984), 163, at pp. 164-65.

[27] The documents over which Mr. Wilson asserts privilege that are at issue before me consist solely of correspondence between Mr. Wilson’s solicitor and counsel for Elections Canada.  They do not consist of confidential communications between Mr. Wilson and his solicitor.  Accordingly, I find that they are not eligible for the protection of solicitor-client privilege.

(c) Litigation privilege

[28] The nature of litigation privilege was thoroughly discussed by the Supreme Court of Canada in the Blank case, where Fish J. quoted further from Prof. Sharpe’s article as follows (loc. cit. supra):

Litigation privilege, on the other hand, is geared directly to the process of litigation.  Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege.  Its purpose is more particularly related to the needs of the adversarial trial process.  Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of the case for trial by the adversarial advocate.  In other words, litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect the relationship (namely, the confidential relationship between a lawyer and the client).

[29] Fish J. then went on to explore the limits of the privilege:

34        The purpose of the litigation privilege, I repeat, is to create a “zone of privacy” in relation to pending or apprehended litigation.  Once the litigation has ended, the privilege to which it gave rise has lost his specific and concrete purpose – and therefore its justification.  But to borrow a phrase, the litigation is not over until it is over.  It cannot be said to have “terminated”, in any meaningful sense of that term, where litigants or related parties remain locked in what is essentially the same legal combat.

35        Except where such related litigation persists, there is no need and no reason to protect from discovery anything that would have been subject to compellable disclosure but for the pending or apprehended proceedings which provided its shield….

36        I therefore agree with the majority in the Federal Court of Appeal and others who share their view that the common-law litigation privilege comes to an end, absent closely related proceedings, upon the termination of the litigation that gave rise to the privilege [citations omitted].

37        Thus, the principal “once privileged always privileged”, so vital to the solicitor-client privilege, is foreign to the litigation privilege.  The litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration.

38        As mentioned earlier, however, the privilege may retain its purpose – and, therefore, its effect – where the litigation that gave rise to the privilege has ended, but related litigation remains pending or may reasonably be apprehended….

39        At a minimum, it seems to me, this enlarged definition of “litigation” includes separate proceedings that involve the same or related parties and arise from the same or related cause of action (or “juridical source”).  Proceedings that raise issues common to the initial action and share its essential purpose would in my view qualify as well.

40        As a matter of principle, the boundaries of this extended meaning of “litigation” are limited by the purpose for which litigation privilege is granted, namely, as mentioned, “the need for a protected area to facilitate investigation and preparation of the case for trial by the adversarial advocates” (Sharpe, at p. 165).

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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