In response to inquiries from lawyers regarding demands for disclosure, the Law Society of Alberta has developed a position statement to provide guidance when they are faced with such demands:

Solicitor-client privilege is a principle of fundamental justice. More than just a rule of evidence, it is a substantive right central to the proper functioning of the legal system that allows clients to communicate candidly and in confidence with their lawyers knowing that these communications are protected from disclosure.¹

Solicitor-client privilege applies to communications:

1. Between a client and a solicitor,
2. Made during the course of seeking or giving of legal advice, and
3. Which are intended to be confidential by the client and the solicitor.²

The Supreme Court of Canada has held that solicitor-client privilege must be as close to absolute as possible³  and that there is a reasonably high expectation of privacy regarding solicitor-client privileged communications.⁴

Occasionally, in accordance with legislative provisions, lawyers receive demands for documents regarding their former or current clients from the Canada Revenue Agency (“CRA”), the Maintenance Enforcement Program (“MEP”), the Real Estate Council of Alberta (“RECA”) or other similar bodies. Such demands purport to require lawyers to comply with the law but compliance may breach confidentiality and solicitor-client privilege.

The lawyer has a professional duty to protect the client’s confidential and privileged information.⁵

Confidentiality is broader in scope than privilege. All client information is confidential and merits protection, though it may or may not be privileged. Examples of confidential records that may or may not be privileged include:

• Fax cover sheets without attached materials that do not seek or give legal advice⁶
• Lawyer’s trust account ledgers⁷
• In a real estate transaction:⁸
  • Evidence of an act or transaction, including evidence of whether a lawyer holds or  has paid or received funds on behalf of a client;
  • Books of account, trust ledgers, cancelled cheques, deposit slips
  • Sale and purchase agreements
  • Conveyancing documents
  • Mortgage lender instructions
  • Correspondence with opposing counsel
  • Statements of adjustment, tax certificates, zoning information
  • Reporting letters that are factual in nature and do not contain legal advice

Privilege belongs to the client, not to the lawyer, and exists whether or not the client asserts a claim of privilege.⁹ The decision to claim privilege must be that of the client, not of the lawyer, regardless of the lawyer’s view about the validity of the potential claim.

Court decisions have identified communications that are or are not protected by solicitor-client privilege. The Court findings below are based on case-specific facts and may vary depending on the circumstances. What may be considered privileged in one case may not be considered privileged in another.

Courts have found the following records to be privileged:

• A lawyer’s billings for fees and disbursements in a criminal matter¹⁰
• A lawyer’s account statements directly related to the seeking, formulating or giving of legal advice¹¹
• Billing documents that relate to the formation and operation of a partnership¹²
• “Without Prejudice” records clearly prepared for settlement purposes¹³
• A legal opinion prepared by a human rights commission’s in-house counsel

Steps to take upon receiving a demand for material or information that is confidential and may be subject to a claim of solicitor-client privilege:

1. Determine the focus of the demand – is it you or your client?  Contact the client and document your efforts to do so.
2. If the lawyer is the focus of the demand, advise the client to seek independent legal advice.
3. If the client is the focus of the demand, assess the client’s circumstances and fully and frankly discuss with the client the likelihood of successfully claiming solicitor-client privilege.  Seek instructions about whether privilege will be waived or claimed.
4. If the client waives privilege and gives instructions to produce the requested documents, obtain written confirmation of the client’s instructions.  The requested documents may be produced.
5. If the client wishes to claim privilege, obtain written confirmation of the client’s instructions.  Make a claim of privilege on behalf of the client and do not produce the requested documents.
6. If the client cannot be contacted to obtain instructions, make a claim of privilege in all circumstances and do not produce the requested documents.  While certain situations make it unlikely that a claim of privilege would be successful, unique facts may create privilege where it would not ordinarily exist.
7. Continue to make reasonable efforts to contact the client and document your efforts.
8. If the requesting body makes an application to Court for a compliance order, appear at the application and take the requested documents, intact, with you.  It is the role of the Court to determine the issue of privilege, not the role of the lawyer who has custody of the documents.
9. Keep a copy of the client file for your records.
10. If the client could not be contacted to obtain instructions regarding privilege, advise the Court accordingly.
11. Making a claim of privilege on behalf of a client may expose a lawyer to a claim for costs or penalties.  In these circumstances, notify the Law Society of Alberta so it can consider whether it will seek leave to intervene or take other steps on your behalf.

If you have questions about a particular demand or this statement, please contact a Practice Advisor.

[1] Solosky v. The Queen, [1980] 1 SCR 821; Descôteaux et al. v. Mierzwinski, [1982] 1 SCR 860;    Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61; Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44.
[2] Solosky, supra note 1.
[3]  Lavallee, supra note 1.
[4] Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7.
[5] Lavallee, supra note 1; Law Society of Alberta Code of Conduct, 2.03(1).
[6] Snehotta v. Zenker, 2010 ABQB 556.
[7] Stevens v. Canada (Prime Minister), [1998] 4 FCR 89; Matthison v. Odishaw, 1999 ABQB 207.
[8] Westra Law Office (Re), 2009 ABQB 391.
[9] Lavallee, supra note 1.
[10] Maranda v. Richer, 2003 SCC 67.
[11] Stevens v. Canada (Prime Minister), [1998] 4 FCR 89.
[12] Snehotta, supra note 6.
[13] Ibid.
[14] Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31.