Addressing the question of privilege

University of Ottawa law professor Adam Dodek has written a discussion paper on solicitor-client privilege for the Canadian Bar Association that takes a good look at some fundamental questions around one of the touchstones of the profession.Adam Dodek

The 62-page research paper, “Solicitor-Client Privilege in Canada, Challenges for the 21st Century,” is a thorough examination of the state of solicitor-client privilege in Canada and around the world.

In this country, says Dodek, there is fairly beefy protection for privilege but it’s still not always clear when and where it exists. “Solicitor-client privilege in Canada has evolved from a limited evidentiary privilege to a quasi-constitutional right. The Supreme Court of Canada has weighed in; however the jurisprudence does not provide an adequate framework for some related issues,” says Dodek in the paper’s executive summary.

“While solicitor-client privilege has been greatly strengthened in Canada of late, we do not wish to be complacent,” CBA president Rod Snow tells Legal Feeds. “The jurisprudence does not provide an adequate framework for addressing several issues regarding the privilege. Moreover, the Canadian approach is in many ways at odds with other common law jurisdictions.”

The last section of the paper is probably the most interesting. Dodek looks and how privilege is going to or must evolve in the modern practice of law. He discusses whether privilege should be extended to paralegals or others giving legal advice such as immigration consultants and there will surely be lawyers who have an opinion on that front. He also considers analogous privilege for patent agents and tax accountants. He notes: “The common law in Canada has been reticent to recognize privilege for these other professionals.”

On top of the extension of privilege, Dodek examines how technology and the changing way people communicate will affect privilege. “The touchstone of the privilege is confidentiality and technological changes have brought unparalleled access and connectivity at the cost of confidentiality,” he writes.

The issue of outsourcing and other changes in the way legal business is conducted also need to be addressed, says the paper.

Snow says, “We think the discussion paper provides food for thought for the legal profession in Canada. The ethics committee and others will review the paper and recommend next steps for CBA.”

In the end, writes Dodek: “A fundamental question that we as a profession have to face is whether the doctrine of the privilege will adapt to new circumstances or whether lawyers’ behaviours will have to adapt to deal with the strict rules of the privilege.” A good question as the legal profession is not really known for its general willingness to change and adapt.

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