Solicitor-Client Privilege

Solicitor-client privilegeProtection for confidential communications between lawyer and client. is a fundamental principle of justice in Canada. This privilege rests with the client, not the lawyer. It allows people to communicate candidly and confidently with legal counsel, knowing that any information they give will remain confidential or privileged.

This privilege covers all communication you have with your lawyer about your case. That includes conversations in person, over the phone, through voicemail, emails or text messages. If you talk to a legal assistant or communicate with another lawyer in the firm, those communications are also privileged. And if someone calls a law office to ask if you are a client, staff members cannot disclose that information without getting your permission first.

If a lawyer were to meet with a colleague to seek advice about your case, they could not reveal your name or any detail that may identify you. All they could say was something along the lines of, “I have a client with these circumstances. Any advice on how to proceed?”

The 1999 Smith v. Jones decision of the Supreme Court of Canada articulated why solicitor-client privilege is so highly regarded. The Court described it as the highest privilege recognized by the courts, and recognized that it is of fundamental importance to the administration of justice and should be maintained wherever possible. This privilege also helps build trust between you and your lawyer. When seeking legal advice, you must be able to communicate freely and frankly with your lawyer. If you withhold information for fear of being in further trouble with the law, your lawyer will not have a complete understanding of what led to the charge, which will impair the legal advice they can provide.

As soon as you step into a lawyer’s office, even for your initial consultationThe first meeting or call between a lawyer and a potential client., whatever you say becomes privileged information. The lawyer cannot share that information with others, even if you decide not to retain them.

The Supreme Court has held that solicitor-client privilege must be as close to absolute as possible. The Federation of Law Societies' Model Code of Professional Conduct provides that "A lawyer may disclose confidential information, but must not disclose more information than is required, when the lawyer believes on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm."

In Smith v. Jones in 1999, the Supreme Court of Canada held that public safety can set aside solicitor-client privilege, but only when three conditions are met: first, there is a clear risk to an identifiable person or group of persons; second, there is a risk of serious bodily harm or death; and third, the danger is imminent. These factors must be assessed together on the facts of each situation, and all three must be present before the privilege can be displaced.

The obligation on lawyers to keep confidential all information they learn about clients never ends, even after the client dies. The only exception would be in rare cases where the court grants an exemption.