Solicitor-client privilege is a communication between a solicitor (a lawyer) and a client, of a confidential nature, that is related to the seeking, forming or giving of legal advice.
When you speak to a lawyer, your conversations are privileged, which means confidential. The lawyer you speak with cannot talk to anyone about your conversations outside of the firm without your explicit permission. Privilege attaches to communications, which means conversations in person, over the phone, over voicemail, email or text message are all confidential. Just because you have not retained or paid a lawyer, your communications are still privileged.
This article will cover the basics of solicitor-client privilege and its limits. However, this is a very complicated area of the law. We encourage you to contact a lawyer if you have any questions, knowing that our conversation will be confidential. Your initial free consultation is also confidential. Please contact a lawyer at Pringle Chivers Sparks Teskey and we will be happy to provide you with timely advice.
PURPOSE BEHIND SOLICITOR-CLIENT PRIVILEGE
Society places a very high value on solicitor-client privilege, and lawyers do a lot to protect it. It is very important that clients speak freely, and lawyers cannot give good advice without the whole picture. Put differently, just because someone is not a lawyer does not mean they should be in a worse position to defend themselves than someone with proper legal training and expertise. Solicitor-client privilege promotes full and frank discussions, while also advancing ethical legal decision-making.
WHAT DOES SOLICITOR-CLIENT PRIVILEGE PROTECT?
If you leave a voicemail, talk to a legal assistant or communicate with another member of the firm who is not your assigned lawyer, you can rest assured that your communications are still privileged. Even if a family member or close friend calls to ask if you have a file with us, we cannot disclose that information without getting your permission first.
HOW LONG ARE THE COMMUNICATIONS PROTECTED?
Solicitor-client privilege is permanently protected, meaning that the privilege continues even if the solicitor-client relationship ends and the file has been closed. This privilege is so protected that, subject to the exceptions below (and in the unique case where the validity of a will is in dispute), solicitor-client privilege survives the death of the client.
SOLICITOR-CLIENT PRIVILEGE AND THIRD PARTIES
For solicitor-client privilege to apply, the communication must be intended to be confidential. If there is an unnecessary third party in the room or on the phone, this confidential intent may not be present. That does not mean that your parent, spouse, or close friend cannot be involved, so long as the information is shared among those with a common or joint interest.
Being charged or investigated with a criminal offence can be difficult and scary. If it helps to have a second set of ears to listen to your lawyer’s advice by a family member or close friend, ask your lawyer to have them be part of the conversation. By having them involved in the meeting over the phone or in person, you are waiving solicitor-client privilege only to the extent that they are listening to and are part of the conversation. In other words, the communications will remain confidential between you, your lawyer and the third party you have involved.
It is extremely important that you trust the third party to keep the communications private. If you do not fully trust them, you should not have them involved in your privileged conversations with your lawyer. It is also important to let your lawyer know if the third party is a co-accused or might be a witness as your lawyer likely will not want them to be part of your conversations.
LIMITS OF SOLICITOR-CLIENT PRIVILEGE
The starting point to solicitor-client privilege is that the communications between a person and their lawyer will be confidential. However, there are limits and exceptions, as discussed below.
Protects Legal Advice Only
Your communications are protected when you are receiving legal advice from a lawyer. You need to be speaking to a lawyer in their professional capacity as a lawyer. In other words, casual conversations with someone you know to be a lawyer on the golf course are not protected. Similarly, if you are talking to a criminal defence lawyer about business or accounting advice outside their expertise, those conversations may not be protected.
Preparing your defence might mean that you or your lawyer need to speak with other parties. For example, if your lawyer sets up a meeting with an expert (i.e. a forensic psychologist) who is going to assess you and write a report, your conversations with that expert are protected under solicitor-client privilege. This is because the expert is acting as an agent for your lawyer and therefore the communications made to the expert are as if they are made directly to your lawyer.
While other privileges might cover communications from parties other than the client, solicitor-client privilege is meant to cover only what the client communicates to their lawyer or a lawyer’s agent. For instance, if your lawyer hires a private investigator, the fruits of their investigation will not be covered by solicitor-client privilege because it has nothing to do with a client’s communications. However, these communications will likely be covered by “litigation privilege”. If you have more questions about agents and privilege, please contact our office.
Protects “Communications” Not “Facts” Or “Physical Objects”
Solicitor-client privilege protects communications not pure facts. This means what you say or something that you provide your lawyer in writing will be protected as they are communications. By contrast, the fact that you may have been seen by someone attending at a lawyer’s office is not protected by solicitor-client privilege, as it is a fact not a communication. Unfortunately, the distinction is not always this clear. The test is whether the “fact” is integral to the solicitor-client relationship and their communications. If the answer is yes, then it is protected under this privilege.
Solicitor-client privilege also does not apply to physical objects, as again it is meant to cover communications. Often we refer to the saying, “a lawyer is not a safety deposit box”. Though to be clear, this privilege can apply to communications about the objects.
It is also noteworthy that solicitor-client privilege cannot be used as a shield with documents that pre-exist the solicitor-client relationship. For instance, during a tax audit, a person cannot send the pre-existing financial records to their lawyer and claim they are privileged.
Once again, this is a very complicated area of the law that can have significant consequences if handled incorrectly. If you have questions about what is and is not covered by solicitor-client privilege, or if you have questions about “physical object,” please contact our office.
Past Crimes Versus Future Crimes
There is no solicitor-client privilege to protect communications that are:
- In themselves criminal; or
- Made to obtain legal advice to commit a crime.
For example, you cannot tell your lawyer where the murder weapon is and ask him or her to go hide it. Similarly, communications would not be privileged if you are asking your lawyer for advice on what steps are needed to get rid of the murder weapon. These rules apply to both criminal and civil law settings. For instance, there is no privilege for advice on how to breach a contract, commit a tort, etc.
Your communications are protected by solicitor-client privilege when disclosing crimes that have already been committed (past crimes). For example, speaking to your lawyer about the fact that you are planning to sexually assault someone again would not be covered by solicitor-client privilege. The key here is the client’s purpose. Even if the lawyer does not realize that the client is trying to gain advice on how to commit a future crime, if that purpose is later proven in court, those communications will not be privileged.
To be clear, there is privilege for discussions about how to avoid committing a future crime. You are, for instance, entitled to ask a lawyer whether certain behaviour would constitute a crime to make sure you are acting within the confines of the law.
Public Safety Exception
This is a rarely used exception. Solicitor-client privilege is vigorously protected and only overridden if absolutely necessary to avoid a public safety risk. When public safety is involved and death or serious bodily harm is imminent, solicitor-client privilege should be set aside. To determine whether the threat to public safety outweighs the need to preserve solicitor-client privilege, the lawyer must consider:
- Is there a clear risk to an identifiable person or group?
- Is there a risk of serious bodily harm or death?
- Is the danger imminent?
Solicitor-client privilege belongs to the client, as it was created for the client’s benefit. This means that the lawyer cannot waive the privilege without the express consent of the client, or unless one of the above-noted exceptions apply. A client’s waiver of solicitor-client privilege must be clear and done in complete awareness of the result. This means that the client:
- Knows of the existence of the privilege; and
- Voluntarily expresses an intention to waive it.
Usually a waiver will only be valid if it is expressly waived. The validity of an implied waiver will be governed by fairness and consistency. This is because if you intentionally waive part of the communication, you are impliedly waiving the whole thing. In other words, waiver of privilege as to part of the communication will be held to be waiver as to the entire communication.
HIRING A LAWYER
Being charged with a criminal offence is serious. Not only are the repercussions life changing and long term, but if you are found guilty of committing an offence the effects can negatively impact your family, career, and future. If you are currently facing criminal charges, it is imperative that you hire a lawyer to protect your future and that you can be assured your conversations will remain privileged. At Pringle Chivers Sparks Teskey our lawyers are recognized for their ability to build solid defenses, conduct thorough investigations, and provide expert advice, while maintaining your confidentiality. Call our office today for your free consultation.