The Advisory: Volume 9, Issue 2, August 2011

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Steps to Take Upon Receiving a Lawful Demand for Material

LAWYERS ARE required to protect individuals’ rights to make a claim of privilege on all information in their possession, whether or not the file is concluded.

The Benchers of the Law Society of Alberta have identified the protection of client-lawyer privilege as a key strategy in defending the administration of justice. The Law Society is committed to monitoring challenges and threats to client-lawyer privilege, supporting lawyers in protecting privilege and taking targeted action where privilege is at risk.

On occasion lawyers are served with some “process” which places them in a conflict – the process requires compliance in law, but compliance would result in depriving an individual of the right to assert a claim of privilege.

The Law Society has a working arrangement with the Attorney General of Alberta which permits the Law Society to bring this important obligation to the attention of a lawyer in the case of a provincial search warrant or, in cases where a lawyer is the target of a search warrant, results in the appointment of a referee.

There is no existing working arrangement with the Attorney General of Canada or the Ministry of National Revenue. As a result, a lawyer may receive a warrant or demand for information without the Law Society receiving advance notice. In those cases, a lawyer is urged to contact the Law Society’s Practice Advisors for advice.

In addition, lawyers should be aware that recently the Office of the Privacy Commissioner has issued demands for production of privileged material. The constraints identified above apply to these demands as well.

In the case of a lawful demand for information which may be subject to a claim of privilege, lawyers must follow existing court direction on safeguarding an individual’s future right to claim privilege while responding to the demand.

A lawyer should make a claim of privilege in all circumstances if unable to obtain instructions otherwise from the client. While certain situations may make it unlikely that a claim of privilege would succeed, unique facts in some situations can cause documents to be privileged that may ordinarily not be privileged. Since privilege always belongs to the client, the decision to claim privilege must always be that of the client and not of the lawyer, regardless of the lawyer’s view about the validity of the potential claim. If a client cannot claim privilege because the client does not know of the demand to obtain the client’s document from the lawyer, it is the role of the court to decide the issue of privilege, not the role of the lawyer who has custody of the document. The lawyer should insist on sealing any documents which are captured by the demand and filing them with the court.

Steps to take upon receiving a lawful demand for material which may be subject to a claim of client-lawyer privilege

  1. Contact the Practice Advisor
  2. If the demand requires a response prior to being able to consult the client, seal the documents sought and file them with the court
  3. Continue to seek client instructions on whether a claim of privilege will be asserted.
  4. If the client cannot be contacted, appear in court on the application of the requestor to advise the client cannot be contacted – cases are clear that privilege cannot be lost be default.
  5. It is inappropriate for the organization demanding the documents to threaten or seek costs from the lawyer who is the subject of the demand. If costs are being sought please advise the Practice Advisor for further advice.

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