Solicitor-client privilege

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In the law of Commonwealth countries, solicitor-client privilege is a class-based privilege that protects all communcations between a solicitor and his or her clients from being disclosed in court against client's will. It is the strongest of all the types of privilege as it is permanent and the exceptions are narrow.

The purpose behind this legal principle is to protect an individual's ability to access the justice system by encouraging complete disclosure to legal counsel without the fear that any communications may prejudice them in the future.

1 History
2 In Canada
3 Exceptions
4 Notes
5 See also

[edit] History

The principle originated during the 16th century as protection for individuals when accessing the knowledge and legal resources available to lawyer and was said to stem from the "oath and honour" of the lawyer. It was based on the fact that the ordinary citizen could not safely navigate the complexities of the law and justice system without some assistance. However, without protection the quality of the advice would suffer as clients "would not venture to consult any skilful person, or would only dare tell his counsellor half his case".^[1]

[edit] In Canada

Solicitor-client privilege was initially a common law evidentiary principle similar to hearsay, but has since become recognized as a substantive rule that is constitutionally protected. This recognition began with R. v. Solosky (1979) where Justice Dickson, in tracing its history, regarded it as a "fundamental civil and legal right" that guaranteed clients a right to privacy in their communications with their lawyers even outside a courtroom.^[2]

In R. v. McClure [2001] 1 S.C.R. 445, the Court found that solicitor-client privilege was a principle of fundamental justice and so is protected under section 7 of the Charter.

In its general sense, Canada has adopted John Wigmore's definition of solicitor client privilege:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.^[3]

Justice Lamer set out the test for solititor-client privilege in Decoteaux v. Mierzwinski ^[4]:

1. The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client's consent.

2. Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person's right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.

3. When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.

4. Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively.

[edit] Exceptions

There are a number of exceptions to communications that would otherwise be protected under solicitor-client privilege. Privilege cannot be relied upon when there is innocence at stake and where the communication is used to facilitate a crime.