Adam Dodek, “Solicitor-Client Privilege in Canada: Challenges for the 21st Century” for the Canadian Bar Association, February, 2011
This is a clear and cogent piece on solicitor-client privilege, and wonderful material for senior lawyers looking for interesting ways to meet their three hours of professionalism content in their continuing professional development (CPD). I would suggest discussing this within a study group. For information on how to apply to have your study group accredited by the law society for professionalism content, click HERE.
Adam has developed a 90 minute session drawing from the article that may be accredited for mandatory Professionalism hours. Contact him directly at the University of Ottawa if you are interested in having him come to your firm to facilitate a workshop (Professor Adam Dodek (Adam.Dodek@uottawa.ca)
From the Executive Summary of the paper:
The context for this Discussion Paper is the need to take stock of the state of Solicitor- Client Privilege in Canada in light of developments internationally and at home. There is no single court decision, government action or event that has precipitated the need for reflection but that should not be an invitation for complacency. The Supreme Court of Canada’s jurisprudence is consistent and predictable in strongly protecting Solicitor-Client Privilege (the Privilege). It generally aligns with the positions taken by the Canadian Bar Association (CBA) before the high court. However, the court’s jurisprudence does not provide an adequate framework for addressing the multitude of issues that currently exist and that are likely to arise regarding the Privilege.
Moreover, the Canadian approach to the Privilege is in many ways at odds with how the Privilege is treated in other common law jurisdictions. In an increasingly globalized legal world, the time is ripe to identify issues for the Privilege in Canada and begin to start to think about how they should be addressed. This is the raison d’être of this Discussion Paper.
Over the past three decades, Solicitor-Client Privilege has been elevated from a limited evidentiary privilege into a quasi-constitutional right. Wigmore’s classic definition of the Privilege continues to prevail: “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 privilege be waived.” In a series of cases between 1999 and 2002, the Supreme Court greatly strengthened the Privilege. It is now best understood as a quasi-constitutional right to communicate in confidence with one’s lawyer which can be invoked in any circumstances.
The Supreme Court has only recognized two exceptions to the Privilege: public safety and innocence at stake. In practice, there exist a group of other exceptions often referred to as “Lawyers’ exceptions” or “self-defence exceptions”. These allow lawyers to reveal privileged information to defend themselves or their associates from charges of malpractice or misconduct or to collect a fee. The Supreme Court has also left open the possibility of other exceptions, e.g. for national security. By far, the area most in flux is the rule that communications in aid of a crime or fraud are not privileged. Recent cases have shown a willingness to expand the exception to include communications in furtherance of a tort or breach of contract. There are significant consequences to expanding the crime-fraud exception into these areas.
Solicitor-Client Privilege in law and in practice looks very different in other jurisdictions. In a globalized legal world, international pressures will impact on the Privilege in Canada and Canadian clients and lawyers will engage in transnational transactions or litigation where the Privilege will apply differently. Moreover, Canadian courts are likely to consider the law in other jurisdictions either because foreign law will be directly engaged or because of the need to consider persuasive authority in other common law countries to deal with new Privilege issues for which there is a dearth of Canadian authority.
For the rest of the summary and the entire paper, click HERE.