QUICK TAKEAWAY
Solicitor-Client Privilege is a fundamental principle of our legal system that allows clients to discuss information about their case with a lawyer without fear of that information being shared with others unless they give consent. This privilege begins during the initial consultation and continues indefinitely, even if the lawyer-client relationship ends or the client passes away. The only exception to this privilege is if the lawyer believes that failing to disclose information could put others in danger.
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What is Covered Under Solicitor-Client Privilege?
Solicitor-client privilegeA privilege that makes most communications between a lawyer and a client confidential is a fundamental principle of justice in Canada. This privilege rests with the client, not the lawyer. It allows people to communicate candidly and confidently with legal counsel, knowing that any information they give will remain confidential or privileged.
This privilege covers all communication you have with your lawyer about your case. That includes conversations in person, over the phone, through voicemail, emails or text messages. If you talk to a legal assistant or communicate with another lawyer in the firm, those communications are also privileged. And if someone calls a law office to ask if you are a client, staff members cannot disclose that information without getting your permission first.
If a lawyer were to meet with a colleague to seek advice about your case, they could not reveal your name or any detail that may identify you. All they could say was something along the lines of, “I have a client with these circumstances. Any advice on how to proceed?”
Solicitor-Client Privilege is Important
The 1999 Smith v. Jones decision of the Supreme Court of Canada articulated why solicitor-client privilege is so highly regarded. The judgment notes that “the highest privilege recognized by our courts [and] is of fundamental importance to the administration of justice and, to the extent possible, it should be maintained.”
This privilege also helps build trust between you and your lawyer. When seeking legal advice, you must be able to communicate freely and frankly with your lawyer. If you withhold information for fear of being in further trouble with the law, your lawyer will not have a complete understanding of what led to the charge, which will impair the legal advice they can provide.
Privileged Information at the Initial Consultation
As soon as you step into a lawyer’s office, even for your initial consultationThe first meeting between a lawyer and client, whatever you say becomes privileged information. The lawyer cannot share that information with others, even if you decide not to retain them.
Exceptions to Solicitor-Client Privilege
The Supreme Court has held that solicitor-client privilege must be as close to absolute as possible. The Federation of Law Societies’ Model Code of Professional Conduct provides that "A lawyer may disclose confidential information, but must not disclose more information than is required, when the lawyer believes on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm.”
In Smith v. Jones in 1999, the Court held that public safety concerns set aside solicitor-client privilege when a lawyer reasonably believes “there is a clear and imminent threat of serious bodily harm to an identifiable group, and if this threat is made in such a manner that a sense of urgency is created.”
Does Solicitor-Client Privilege Ever End?
The obligation on lawyers to keep confidential all information they learn about clients never ends, even after the client dies. The only exception would be in rare cases where the court grants an exemption.
Glossary of Legal Terms
Initial consultation
The first meeting between a lawyer and client to discuss the case in general terms. It gives clients a chance to decide whether they can establish a working relationship with that lawyer.
Solicitor-client privilege
A privilege that makes most communications between a lawyer and her client confidential. It is rooted in the confidential nature of the solicitor-client relationship.