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Michael Edelson: Why your secrets are safe with your lawyer

(2012-04-06)

Why your secrets are safe with your lawyer

BY MICHAEL EDELSON, THE OTTAWA CITIZEN

Defence lawyers frequently encounter many members of the public who do not understand the meaning, application or rules that surround solicitor-client privilege and a lawyer’s duty of strict confidentiality.

The rationale for these rules has been described in one appeal case as follows: “The solicitor-client relationship is anchored on the premise that clients should be able to have complete trust and confidence in the counsel who represents their interests. Clients must feel free to disclose the most personal, intimate and sometimes damaging information to their counsel, secure in the understanding that the information will be treated in confidence.”

This premise has been echoed by the Supreme Court of Canada on several occasions. The scope and importance of the privilege also extends beyond the relationship itself and is viewed as “integral and extremely important to the function of the legal system.”

We frequently discover, in our discussions with clients, that they have several key misconceptions concerning this privilege.

One of the most common is that the privilege belongs to the lawyer. This is false; it belongs, at all times, to the client, and it cannot be waived by the lawyer except with the informed consent of the client. Privilege may be lost or “pierced” in certain circumstances (this will be discussed in the next column), including through orders of the courts.

A second misconception is that privilege applies to every document provided to the lawyer and every conversation with a lawyer. This is not the case.

For example, documents not otherwise privileged and created prior to the commencement of the solicitor-client relationship do not become privileged simply because they are brought to a lawyer’s office after the lawyer has been retained.

So, if a client seeks to shelter documents or items from the authorities by depositing them in his lawyer’s office, they would generally not be saved from seizure by privilege.

Moreover, all communications with a lawyer are not protected by privilege. A leading evidence text succinctly defines the scope and the application of privilege in this context: “A communication between a solicitor and a client, of a confidential nature and related to the seeking, forming or giving of legal advice, is privileged information.”

So, for example, conversations with a lawyer seeking personal or business advice outside of the legal context are not protected. Also, because of the “confidentiality” requirement of such communications, the presence of a third party during interviews with a client could nullify privilege. This caveat is especially important when interviewing youthful clients charged with offences, as often their parents wish to be present.

“Privilege” is often confused with “confidentiality.” They are not the same thing. All privileged communications are, by definition, confidential. However, the reverse is not always the case. This distinction is brought most sharply into focus when efforts are made to compel a lawyer to disclose communications with their clients.

Confidentiality is an “ethical duty,” and, in this sense, distinguished from the “legal protection” offered by privilege. This difference is reinforced in Rules of Professional Conduct governing all lawyers: “This rule must be distinguished from the evidentiary rule of lawyer-client privilege concerning oral or documentary communications passing between the client and the lawyer. The ethical rule is wider and applies without regard to the nature or source of the information, or the fact that others may share the knowledge.”

Thus, a lawyer is ethically bound to hold, in strict confidence, all information concerning the affairs of clients, even when solicitor-client privilege does not attach. By way of contrast, where statements to your doctor in his office or your priest in the confessional may be clothed with some confidentiality, they are not privileged.

Privilege attaches to communications with counsel prior to the formality of retaining a lawyer. It applies to all of the law firm’s professionals and staff. After the relationship with your lawyer ends, the privilege continues, and it even survives your death. The umbrella of privilege applies to other professionals retained, for the purpose of working on the file, to assist the lawyer in giving legal advice (for example: accountants, psychiatrists, physicians, toxicologists).

The umbrella of confidentiality applies to all forms of information and communication with the client, including letters, electronic, photographic and digital materials, subject to some exceptions. For example, if a client, charged with murder, discloses to his lawyer the location where he has hidden the body of his victim, the lawyer is bound by privilege and the duty of confidentiality not to disclose such information.

On the other hand, should the client come into the lawyer’s office and drop the blood-stained knife used in the commission of the crime on the lawyer’s desk, entirely different rules would apply to the lawyer’s legal and ethical obligations. These and other exceptions to the rules will be explored in the next column on the role of the defence lawyer.

Criminal lawyers are frequently asked questions by friends, relatives and other lawyers concerning their cases, especially notorious or high-profile matters. Nonetheless, except when expressly released from the privilege or duty of confidentiality by the client, lawyers must keep all such communications in a “vault.”

They must not form any part of discussions with outsiders which could compromise privilege, including, in some cases, the very identity of the client. If it became public knowledge that a named person was under criminal investigation, it could cause irreversible harm to reputations, families, businesses and destroy lives.

Quite simply, lawyers must take this information with them to their graves.

Michael Edelson is the principal partner of Edelson Clifford D’Angelo LLP and a certified specialist in criminal law. He may be reached at 613-237-2290 or michael@edelsonlaw.ca. Follow Michael on Twitter at @EdelsonLaw.

 
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