Last updated June 2024

Solicitor-client privilege is a principle of fundamental justice. It is a substantive right central to the proper functioning of the legal system that allows a client to communicate candidly and in confidence with their lawyer, knowing that these communications are protected from disclosure.

Accordingly, lawyers and law office staff must carefully navigate demands for disclosure. If you have questions about a particular demand, or anything in this resource, please contact a Practice Advisor.

This resource does not address requests for information related to Law Society Complaints. Lawyers subject to a Complaint may find guidance on what to expect on the Law Society website, and are encouraged to review the Legal Profession Act, section 112, and the Code of Conduct, Rule 3.3-1.

Background

Solicitor-client privilege applies to communications between a client and lawyer, made in the course of seeking or giving legal advice, and intended to be confidential.

Solicitor-client privilege must be as close to absolute as possible. The privilege attaches to information a person provides to obtain the services of a lawyer and includes communications with those who assist the lawyer professionally. It is not necessary that an effort to seek legal services crystallize into a retainer for information to be protected by privilege. Legislation purporting to abrogate, set aside, or infringe solicitor-client privilege must be interpreted restrictively. Because of the specially protected nature of the solicitor-client relationship, the reasonable expectation of privacy in relation to solicitor-client privilege is high.

Lawyers occasionally receive demands for documents and records regarding their current or former clients. These demands may come under the auspices of relevant legislation in a civil or regulatory context, or in the form of a search warrant relating to criminal allegations.

In each case, lawyers must consider and respond carefully to ensure that compliance with the request does not breach solicitor-client privilege. The lawyer has a professional duty to protect the client’s confidential and privileged information.

All client information is confidential and merits protection, though it may not be privileged. Privilege belongs to the client, not the lawyer. Whether to claim privilege must be the client’s decision. The lawyer’s responsibility is to protect confidential and potentially privileged records to ensure the client has a meaningful opportunity to make their claim. These principles apply regardless of where the information is stored. Courts have held that the relevant principles apply to any place where privileged documents may reasonably be expected, including the cloud.

Courts will carefully assess claims of privilege on the facts of each case. Some examples of records sought from a lawyer’s file that were found to be privileged include:

• a lawyer’s billings for fees and disbursements;
• billing documents related to the formation and operation of a partnership;
• records clearly prepared for settlement purposes; and
• a legal opinion prepared by in-house counsel to an administrative tribunal.

Recognizing the significance of solicitor-client privilege is important in preparing to answer demands for disclosure. The sections that follow outline steps to take on receiving a search warrant and other demands for disclosure.

Search Warrants

In Lavallée, Rackel & Heintz v Canada (Attorney General), 2002 SCC 61 CanLII [Lavallée], the Court struck section 488.1 of the Criminal Code (examination and seizure where privilege claimed) and articulated principles to be followed in issuing search warrants at law offices:

• No search warrant may issue for documents known to be protected by solicitor-client privilege.
• Before searching a law office, investigative authorities must satisfy the issuing justice that there is no other reasonable alternative.
• The issuing justice must be rigorously demanding when allowing a law office to be searched.
• Unless the warrant specifically authorizes immediate examination, copying and seizure of a specific record, all records in a lawyer’s possession must be sealed before being examined or removed.
• Every effort must be made to contact the lawyer and client at the time of execution of the search warrant. If the lawyer and client cannot be reached, another lawyer should be allowed to oversee the sealing and seizure of documents.
• The officer executing the warrant should report to the court on all efforts made to contact potential privilege holders. Potential privilege holders should be given a reasonable opportunity to assert a claim of privilege, and, if that claim is contested, to have the issue judicially decided.
• If notification of potential privilege holders is not possible, the lawyer who had custody of the records seized, or another lawyer appointed by either the Law Society or the court should examine the documents to determine whether a claim of privilege should be asserted and should be given a reasonable opportunity to do so.
• The Attorney General may make submissions on the issue of privilege. They can only inspect the records after a judge determines that the records are not privileged.
• If sealed records are found to not be privileged, they can be used in the ordinary course of an investigation.
• If sealed records are found to be privileged, they must be returned immediately to the holder of the privilege, or person designated by the court.

If the police arrive with a search warrant, it is important to carefully inspect the search warrant to ensure that the:

• location is identified as the place to be searched;
• date the police have attended is the date authorized on the warrant;
• records sought are identified;
• entity under investigation is identified; and
• requisite judicial officer has signed and dated it.

If there are deficiencies on the face of the warrant, you should note them and assert that the police should obtain a proper warrant.

If the lawyer whose office or records is subject to the search warrant is not able to oversee the execution of the warrant, including where there is a potential conflict of interest, an independent lawyer may serve as a referee. The court may already have appointed a referee in the warrant, if not, the lawyer whose office is subject to the search warrant should take steps to ensure a lawyer oversees the search.

Do not obstruct the execution of the search warrant. If you have concerns about the search warrant or the manner of its execution but the police are insistent on continuing, note your concerns, and do your best to protect privilege and ensure compliance with the principles in Lavallée. The court may review the execution of the warrant later.

The lawyer overseeing the search should:

• keep clear notes of participants, events and timing;
• identify and assert privilege with respect to all records;
• offer to locate specific records identified in the warrant and, if possible, make and keep copies of them;
• give only what is demanded by the warrant;
• retain copies of all records, if possible;
• seal all the documents demanded pursuant to the warrant in packages marked for identification and initialed by them and the police, taking care to ensure that the police do not see the documents or any client-identifying information;
• ensure the sealed packages are delivered to the court or custody of an independent third party; and
• make reasonable efforts to contact the clients whose documents are subject to seizure to advise them of what is happening and that they may wish to obtain independent legal advice.

The court controls the search, seizure and next steps; it has responsibility for the process. Where there is a concern or dispute about the search warrant or the manner of execution, an application should be made for the court to review and determine the issues.

Other Demands for Disclosure

Lawyers and law offices may also receive requests from authorities such as the Canada Revenue Agency, Maintenance Enforcement Program, Real Estate Council of Alberta, and similar agencies.

When a lawyer receives such a request they should:

1. Determine the focus and nature of the demand.
2. Contact the client and document efforts to do so.
3. If the lawyer is the focus of the demand, advise the client to seek independent legal advice.
4. If the client is the focus of the demand, assess the client’s circumstances fully and frankly and discuss the likelihood of successfully claiming privilege with them. Consider obtaining or recommending that the client obtain advice from a lawyer knowledgeable in the area of law relating to the request for records. Seek instructions about whether privilege will be waived or claimed and confirm those instructions in writing.
5. If the client waives privilege, the requested records may be produced.
6. If the client wants to claim privilege, make a claim of privilege on behalf of the client and do not produce the requested documents.
7. If you cannot reach the client, make a claim of privilege in all instances and do not produce the records. Continue to make reasonable efforts to contact the client and document your efforts.
8. If the party requesting the documents applies to court for a compliance order, appear at the application and bring the requested documents with you. It is the role of the court to determine privilege. Advise the court if you were unable to reach your client before the application.
9. Keep a copy of any records produced for your file.

Making a claim of privilege on behalf of a client may expose a lawyer to a claim for costs or penalties. If you are asserting privilege after being unable to reach your client, you may wish to retain counsel to do so.

When the Lawyer or Law Office is the Subject of the Underlying Investigation

In any investigation of your records, it is critical to protect clients’ privileged information. When a search warrant or demand for disclosure seeks information about a lawyer or law office, the lawyer should consider retaining counsel. In addition, the lawyer must be mindful of potential conflicts of interest and take appropriate steps. This may include ensuring an independent lawyer is appointed as referee and withdrawing from affected files.

Caselaw

Review the following caselaw for further guidance:

Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 (CanLII)
Re Borden & Elliott and The Queen, 1975 CanLII 739 (ON CA)
Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44 (CanLII)
Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7 (CanLII)
Descôteaux et al. v. Mierzwinski, 1982 CanLII 22 (SCC)
Festing v Canada (Attorney General), 2003 BCCA 112 (CanLII)
Lavallée, Rackel & Heintz v Canada (Attorney General), 2002 SCC 61 CanLII
Maranda v Richer, 2003 SCC 67 (CanLII)
Ontario (Attorney General) v Ontario (Information and Privacy Commissioner), 2007 CanLII 65615 (ONSCDC)
Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31 (CanLII)
R v. Hanington, 2006 ABQB 378 (CanLII)
R v. Tarrabain, O’Byrne & Company, 2006 ABQB 14 (CanLII)
Snehotta v. Zenker, 2010 ABQB 556 (CanLII)