Canadian Law of Solicitor-client Privilege and Litigation Privilege

client privilege confidentiality

Solicitor-client privilege is a person’s right to refuse to disclose, and to prevent any other person from disclosing, confidential communications made with the person’s lawyer for the purpose of furnishing or obtaining professional legal advice or assistance.  This legal privilege is absolute, and of indefinite duration.

The solicitor-client privilege has been firmly entrenched for centuries.  It recognizes that the justice system depends for its efficiency on full, free and frank communication between those who need legal advice and those who are best able to provide it.  Society has entrusted to lawyers the job of advancing their clients’ cases with the skill and expertise available only to those who are trained in the law.  They alone can discharge these duties effectively, but only if those who depend on them for counsel may consult with them in confidence and without fear of disclosure of such confidential information.  The resulting privileged relationship between a solicitor and his or her client is a necessary and essential condition of the effective administration of justice.

Solicitor-client privilege belongs to the client, rather than to the solicitor: thus it is only the client who may waive the privilege.  The privilege also applies to documents that the client may disclose to the lawyer as part of the legal advice sought, and to records as well as opinions prepared by the lawyer in connection with the legal advice sought by the client.

Litigation privilege, also absolute, on the other hand is geared directly to the process of litigation.  Its purpose is more particularly related to the needs of the adversarial trial process.  Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of the case for trial by the adversarial advocate.  In other words, litigation privilege aims to enable a process (namely, the adversary process), while solicitor-client privilege aims to protect the relationship (namely, the confidential relationship between a lawyer and the client).

Once the litigation has ended, the privilege to which it gave rise has lost its specific and concrete purpose, and therefore its justification.  However, the privilege may retain its purpose, and therefore its effect, where the litigation that gave rise to the privilege has ended, but related litigation remains pending or may reasonably be apprehended.