Client-Solicitor Privilege Legal Definition:

A right that belongs to the client of a lawyer that the latter keep any information or words spoken to him during the provision of the legal services to that client, strictly confidential.

Related Terms: Legal Professional Privilege , Privilege , Litigation Privilege , Priest and Penitent Privilege , Husband-Wife Privilege , Attorney Work Product

Also known as solicitor-client privilege or the attorney client privilege (USA) or the legal professional privilege (UK).

In Pearse v Pearse, Justice Bruce wrote:

"Truth, like all other good things, may be loved unwisely — may be pursued too keenly — may cost too much. And surely the meanness and the mischief of prying into a man's confidential consultations with his legal adviser, the general evil of infusing reserve and dissimulation, uneasiness, suspicion, and fear, into those communications which must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are too great a price to pay for truth itself."

Consider these words from the Canadian Encyclopedic Digest, 2010:

"Communications between a solicitor and a client as to the business of the client are privileged, unless the client consents to their disclosure.

"The privilege extends to documents prepared in contemplation of litigation and to conversations in which a person makes disclosures while seeking to retain a solicitor, even if the retainer is not in fact perfected.

"Any information received by a lawyer in a professional capacity concerning a client's affairs is prima facie confidential unless it is already notorious or has been received for the purpose of being used publicly or otherwise disclosed in the conduct of the client's affairs. There may be an implied authority to disclose such information to some persons and not to others.

"The requirement of confidentiality continues indefinitely, even if the solicitor-client relationship terminates. If challenged, the solicitor has the burden of establishing the right to disclose information."

A privilege or right that belongs to the client of a lawyer that the latter keep any information or words spoken to him during the provision of the legal services to that client, strictly confidential. The privilege allows lawyers and their clients to speak freely of a case without having to worry about being called to testify on the content of their mutual disclosures before a court of law. As Justice Hollinrake wrote:

"In my view, the purpose of the privilege is to ensure that a solicitor may, for the purpose of preparing himself to advise or conduct proceedings, proceed with complete confidence that the protected information or material he gathers from his client and others for this purpose, and what advice he gives, will not be disclosed to anyone except with the consent of his client."1

Or this from Re Director of Investigation and Research:

"[T]he protection, civil and criminal, afforded to the individual by our law is dependent upon his having the aid and guidance of those skilled in the law untrammelled by any apprehension that the full and frank disclosure by him of all his facts and thoughts to his legal advisor might somehow become available to third persons so as to be used against him.

And this classic 1833 statement of the law by Justice Brougham in Greenough v. Gaskell:

"The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection (though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisers).

"But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources. Deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case."

The privilege belongs to the client who may, expressly or impliedly, waive the privilege and, exceptionally, it may also be waived by the lawyer if the disclosure of the information may prevent a serious crime.

In Solosky v Canada, Justice Dickson of Canada's Supreme Court wrote this, in part adopting from Wigmore on Evidence:

"Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the com­munications relating to the purpose made in confidence by the client are at his instance permanently protected from disclosures by himself or by the legal adviser, except the protection be waived.

"There are exceptions to the privilege. The privilege does not apply to communications in which legal advice is neither sought nor offered, that is to say, where the lawyer is not contacted in his professional capacity. Also, where the communica­tion is not intended to be confidential, privilege will not attach. More significantly, if a client seeks guidance from a lawyer in order to facilitate the commission of a crime or a fraud, the communication will not be privileged and it is immaterial whether the lawyer is an unwitting dupe or knowing participant."

REFERENCES:

  • Greenough v. Gaskell, 39 E.R. 618 (1883)
  • Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129 (BCCA; Note 1)
  • McNaughton, John, Evidence in Trials at Common Law, aka 8 Wigmore (Boston: Little, Brown and Company, 1961), ¶2292.
  • Pearse v Pearse, 1 De G. & Sm. 12; also at 63 E.R. 950 (1846)
  • Re Director of Investigation and Research and Shell Canada Ltd, 22 C.C.C. (2d) 70 and at [1975] F. C. 184
  • Solosky v Canada, [1980] 1 S.C.R. 821

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