Solicitor-Client Privilege – You Can’t Have Your Cake and Eat it Too
Solicitor-client privilege is a principle of fundamental justice – individuals must be able to communicate with their lawyers candidly and with the understanding that their lawyer may not disclose that information to anyone. Privilege attaches to all communications between a lawyer and their client during the course of seeking or giving legal advice which are intended to be confidential by the client and the lawyer.
On occasion, an individual or their lawyer may receive a demand for disclosure of documents that would fall within the scope of solicitor-client privilege. When such a demand is received, the lawyer is unable to make such disclosure and the client is not compelled to do so, unless in either case the client waives privilege or the Court orders that privilege has, or should be, waived. Typically, to waive privilege, the client will have to give clear instructions to their lawyer, however, waiver of privilege can also be implied through a parties’ conduct, whether they intended such waiver of not.
In the Ontario case of Laurent v Laurent, 2019 ONSC 3535, one of the seminal issues before the Court was the parties’ separation date. The husband argued a separation date of 2010 while the wife argued 2013. Before the Court on issues of disclosure, the husband sought production of the file from a family lawyer the wife had met with in 2012, prior to the date of separation claimed by her. The wife plead to have met but not retained the lawyer as the parties were not separated, relying on such non-retainer in support of her contention that the parties were not separated in 2012. She claimed privilege over the file.
The Court found that the wife could not use privilege as a ‘shield’ to disclosure of records from the meeting, when she herself was using such meeting as a ‘sword’ to support her alleged date of separation. The Court determined that the wife had waived privilege over the records arising from the meeting with the lawyer.
This case is a good reminder that solicitor-client privilege is not absolute – individuals and their lawyers should be wary of seeking to rely on privileged material in support of their claim, if the risk of what will be revealed in waiving privilege outweighs the benefit.