When you talk to your lawyer, you may want to keep the conversation private. If the lawyer divulges what you say, it could hurt your interests in a law suit. Or you might find it embarrassing.
Privacy is protected in a couple of ways. First, a lawyer has an ethical duty to keep client conversations and other communications with the lawyer confidential unless the client authorizes the lawyer to disclose information.
Secondly, under Canadian law, there is a legal rule called solicitor-client privilege. This rule provides that a lawyer must not, and cannot be compelled, to divulge information from a client in a court proceeding unless the client has waived the privilege. There are some exceptions to solicitor-privilege but not very many. The principle that a client may speak freely to a lawyer to obtain advice without having to worry that what the client says may somehow be used to harm his interest is fundamental in Canadian law.
Although the lawyer’s obligation to kept client communications confidential and solicitor-client privilege are similar, they are not identical.
This is illustrated by the recent British Columbia Supreme Court decision in Re: Elsie Jones, 2009 BCSC 1306. The case is a dispute about whether Elsie Jones was mentally competent to transfer her condominium to her daughter, Maureen Ringrose. Elsie Jones has been declared incompetent and the Canada Trust Company has been appointed as her committee (in other words her adult guardian.) Elsie Jones two sons say that she was incompetent when she transferred the condominium. The Canada Trust Company asked the court to determine if Maureen Ringrose is entitled to keep the condominium, or if it must be returned to Elsie Jones.
When Elsie Jones transferred the condominium, she had a lawyer. When the lawyer was being cross-examined he said that he had also done some estate planning or Elsie Jones at about the same time as the transfer. The lawyer refused to produce his file to the parties to the lawsuit. His position was that it was both confidential and privileged. He would only produce the file if the court ordered him to do so.
Mr. Justice Savage was asked to rule on whether the file should be produced, and, if so, to whom. He agreed with Elsie Jones’ lawyer that it was confidential, and he was right to insist on a court order.
Although the file was confidential, it was relevant to the question of whether the transfer of the condominium was valid. Mr. Justice Savage did not elaborate on how it was relevant, but it does seem that the file would show how the transfer fit into Elsie Jones' overall estate plan, and would likely be helpful in showing her thinking and capacity.
Relevance to the proceeding trumps confidentiality.
Mr. Justice Savage then considered solicitor-client privilege. He found that this was the type of communication protected by the rule. Although not absolute, the rule had very few exceptions. He held that the estate planning file was subject to solicitor-client privilege, and could not be disclosed unless the privilege is waived by the client.
Because Elsie Jones is incompetent, and the Canada Trust Company is her committee, Canada Trust Company has her rights to the file, and can decide whether or not to waive the solicitor-client privilege. Unless they waive it, the file may not be produced in the proceeding.
While relevance trumps confidentiality, solicitor-client privilege trumps relevance.
This decision leaves Canada Trust Company in the difficult position of deciding whether it is appropriate to waive the solicitor-client privilege.