The application of privilege

Ken Fredeen and Cheryl Foy on navigating ethical dilemmas in-house

The application of privilege

THIS ADVICE column is intended to support you as you tackle ethical and professional issues. Submit your questions anonymously here.

QUESTION: I am finding that my clients are misusing solicitor-client privilege to communicate in a protected way with each other by copying me. I have educated them that privilege only attaches to correspondence to and from a lawyer seeking or giving advice. Any tips on what else I can do? 

FOY: Canadian law provides the privilege of protection to most communications between a lawyer and her client made to seek or provide legal advice. The concept of privilege is a common law concept. This privilege or protection is commonly known as solicitor-client or legal-advice privilege, and it’s a right of protection for clients of lawyers and licensed paralegals. 

Clients struggle with the concept of solicitor-client privilege. Your experience is not unusual. Maintaining privilege allows clients to freely seek and receive legal advice without worrying that the communications will be shared in legal proceedings. Generally, the scope and applicability of privilege is poorly understood and underappreciated by clients. There are two main concerns if a client fails to properly apply privilege. The first concern is that documents won’t be protect-ed from disclosure, and the second is that your clients may inadvertently waive privilege. It is important to understand what it is and how to retain it. 

However, in reality (unless your organization is the subject of frequent access to information requests under provincial privacy legislation or is engaged in regular litigation), a client’s failure to properly apply privilege won’t become an issue. My advice to you is to continue engaging in regular education on solicitor-client privilege. Find ways to reiterate the message — perhaps when a case comes up that resonates with your client, draw it to the client’s attention. In the broader public sector context, we are governed by provincial privacy legislation. So, questions about whether documents are protected from disclosure in the context of access to information requests arise quite regularly. When they do, I take the opportunity to speak to our clients about communications from them that may be more difficult to defend as privileged. 

FREDEEN: I agree with Cheryl’s comments (noting that although it is a common law concept, Quebec courts often refer to common law cases to interpret the issue of privilege). Put simply, the three pre-conditions to solicitor-client privilege are: 

  • A communication between lawyer and client;  
  • Which entails the seeking or giving of legal advice; and  
  • Which is intended to be confidential by the parties.   

We also know courts strongly protect privilege as it is a principle of fundamental justice. It is also a principle which lawyers practising in-house need to protect and be disciplined about when it comes to using those words. 

Oddly, the concept is often misunderstood and misused by our clients (that is, the employees of our clients). We need to be diligent on when and how those words are used. In my experience, education and discipline are the key. Both start with a clear and simple Law Department practice and policy that sets out how and when communications will be qualified as subject to privilege. 

The fact that this query seems to indicate that the problem arises often leads me to believe that the nature of the business or the employees’ actions, or how the education is being done, is creating cautiousness and fear. You need to get to the root of the problem. That might mean more than education on privilege or simply better education. You might need to implement a clearly defined policy on the topic and education on that policy. After all, you have one client, not many, and it is your client who might want to waive privilege over a document qualified as privilege by an employee. 

One of the important tools in our toolbox is the application of privilege: when and how solicitor-client privileged matters are reported to us and how we report to management and the board so that significant matters retain their privilege. The last thing a general counsel needs is a lack of confidence and certainty in how and when the qualification of privilege is asserted and used, especially in the context of litigation or regulatory activity.   

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