Will you tell my spouse that I met with you?
As lawyers, we sometimes take it for granted that a client fully understands the nature of the relationship between “us” and “them”. In this blog post, I will outline some of the terminology and what it means for both the client and the lawyer.
The duty of confidentiality and solicitor-client privilege are often talked about as one in the same as they both operate to protect client information from disclosure.
The Supreme Court of Canada elaborated on the nature of the relationship in Blank v. Canada (Minister of Justice), 2006 SCC 39, para. 26:
The solicitor-client privilege has been firmly entrenched for centuries. It recognizes that the justice system depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it. Society has entrusted to lawyers the task of advancing their clients’ cases with the skill and expertise available only to those who are trained in the law. They alone can discharge these duties effectively, but only if those who depend on them for counsel may consult with them in confidence. The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice.
Duty of Confidentiality
This is a lawyer’s ethical duty that extends to all information learned working for the client. The duty of confidentiality really goes to the heart of the relationship between a lawyer and a client, it allows clients to openly discuss personal matters with their lawyer without fear that the information could be subsequently disclosed or somehow used against them. Additionally, the duty reinforces the loyalty a lawyer has to their client. BUT, there are some exceptions:
1. Public safety exception – lawyers are officers of the court and they take an oath to obey and uphold the law and its administration. If a client discloses that they are going to murder their ex, the lawyer has a duty to disclose this information to prevent a crime from taking place.
2. Disclosure to defend a lawyer’s own interests – this includes a dispute involving fees, or if a client starts a proceeding against their lawyer, the lawyer has the right to defend themselves.
This applies to communications between the lawyer and the client for the purpose of obtaining legal advice and lasts forever. Solicitor-client privilege belongs to the client. This means that, in general (see exceptions above), only the client can waive the privilege. In order to claim solicitor-client privilege, and keep otherwise relevant information private, three preconditions must be met. The communication must be:
· Between lawyer and client;
· For the purpose of seeking or giving or legal advice; and
· Intended to be confidential by the parties.
In conclusion, if you are thinking of retaining a lawyer and meet with one for the purpose of seeking legal advice, remember that as a client, the privilege is yours and you should feel comforted by the fact that what you discuss with the lawyer will remain private.