|February 24, 2014|
Previously published on February 17, 2014
Once a solicitor-client relationship is established, the communications between them are presumed to be confidential. However, confidentiality is not synonymous with privilege. When solicitor-client communications and documents are privileged, they are beyond the reach of evidentiary consideration—but this is not necessarily true if they are only confidential.
In a 2003 decision, British Columbia Securities Commission v. S. (B.D.), the British Columbia Court of Appeal discussed this distinction. It decided that a lawyer's obligation to keep all of a client’s documents confidential does not necessarily make such communications subject to privilege. Solicitor-client privilege is invoked for the protection of clients to enable them to confide in their counsel.
In order to determine whether communications are privileged, one must look at the nature of the communications. Solicitor-client privilege generally attaches to oral or written communications between the two parties in the following circumstances:
Where a client seeks advice from a lawyer.
Where lawyers provide advice in their professional capacity.
Where the communication between the client and the lawyer relates to legal advice.
Where the communication between the client and the lawyer is made in confidence.
Accordingly, this definition does not render all documents that clients provide to their lawyers for legal advice privileged. The Court emphasized that solicitor-client privilege cannot be claimed for all documents passing between lawyer and client for the purpose of obtaining legal advice, unless the documents were created for this purpose.
How does one distinguish between the two categories? Let's assume that you are the C.E.O. of Company ABC which owns a large parcel of land. ABC hires Contractor A to construct a commercial building on this property. During construction, complications arise because the project’s design endangers employees on site and Contractor A ceases work until it receives a safer design. You provide Contractor A with a safe design but it continues to refuse to work, insisting it requires an even safer design. You decide that Contractor A is now in breach of its contract so ABC will terminate its construction contract with Contractor A.
However, before taking this drastic step, you exchange several internal e-mails and memoranda with other members of the company. In these you discuss your desire to terminate the contract with Contractor A, your personal opinions of Contractor A, and your belief that the design was, in fact, unsafe.
Contractor A later sues ABC for breach of contract. You then write to your lawyer with the subject line, Personal and Confidential, to inform her about the lawsuit and seek her advice on ABC's potential liability in the action against it. In order to get her legal advice, you also forward her the e-mails and memoranda that were circulated within ABC.
In the scenario above, your e-mail to her was generated for the purpose of obtaining legal advice and is therefore privileged. However, the attachments, while connected to this e-mail and forwarded under confidential circumstances, do not fall under the privileged category. They were written before your company actually undertook its legal action. ABC will therefore be obliged to produce these internal e-mails and memoranda in the course of litigation.