Understanding Solicitor-Client Privilege


20131105 - Private investigators and Solicitor-Client PrivilegeSolicitor-client privilege encourages clients to disclose relevant information to their legal representatives by protecting the privacy of those disclosures. This means that a solicitor is generally prohibited from revealing information a client has disclosed in confidence. A private investigator may become entangled in solicitor-client privilege by working for the solicitor or by working for the opposing party. This makes understanding solicitor-client privilege an important part of private investigation.

What Does Solicitor-Client Privilege Protect?

According to the Office of the Information Commissioner of Canada:

“There are two distinct branches of solicitor/client privilege, the legal advice privilege and the litigation privilege (which is sometimes called the lawyers brief privilege). The legal advice privilege extends to all communications written or oral, passing between solicitor and client for the purpose of obtaining legal advice. As for the litigation privilege, it protects from disclosure communications between a solicitor and a client or with third parties which are made in the course of preparation for litigation, whether existing or contemplated, such as experts report where the dominant purpose of obtaining the report was for the purpose of litigation.”

The legal advice privilege gives clients the right to consult with their solicitors in confidence. The litigation privilege is more widely applicable, and includes all papers and investigative materials created for the purpose of litigation. Essentially, this means that the client has the right to privately disclose information pertinent to obtaining legal advice to his solicitor and that the solicitor has the right to produce documents on the client’s behalf that cannot be used against the client in court.

According to Professor Adam Dodek, “The Canadian approach to the Privilege is in many ways at odds with how the Privilege is treated in other common law jurisdictions.” This means that Canadian solicitor-client privilege laws may be misunderstood and underappreciated by international clients. In particular, Dodek reports that “Solicitor-Client Privilege has been elevated from a limited evidentiary privilege into a quasi-constitutional right.” The seriousness with which solicitor-client privilege is regarded by Canadian law makes understanding this privilege essential for private investigators involved in legal proceedings.

Exceptions to the Privilege

According to Dodek, the Supreme Court only recognizes two exceptions: a narrowly guarded public safety exception, and the right to make full answer and defence exception. Dodek further asserts, “On the right to make full answer and defence (also referred to as the innocence of the accused exception), the Supreme Court has construed this exception so narrowly that it is unlikely to apply except in the rarest of circumstances. In contrast, the public safety exception is more open ended. It requires a clear, serious and imminent threat to public safety in order to override the Privilege.”

This means there are few ways to get around solicitor-client privilege. The most likely exception is the existence of a “clear, serious and imminent threat to public safety.” In order to fully appreciate the strictness of solicitor-client privilege, however, it must be applied to private investigation, which will depend on which party employs the private investigator.

How Does Solicitor-Client Privilege Impact a Private Investigation?

Remember, the legal advice privilege gives clients the right to consult with their solicitors in confidence. This right has little impact on a private investigation regardless which side you’re on, because a private investigator is unlikely to be party to these discussions.

The litigation privilege, on the other hand, protects all papers and investigative materials created for the purpose of litigation. If a private investigator works for the solicitor, this means that any investigations, reports, and documentation created by a private investigator for the solicitor for the purpose of litigation is protected by solicitor-client privilege. Neither the solicitor nor the private investigator is free to disclose this information, unless there is a “clear, serious and imminent threat to public safety.”

If the private investigator works for the opposing party, then the private investigator cannot acquire any of these documents for use in court. Due to the strictness with which Canadian law protects solicitor-client privilege, it’s safe to say that using these documents as a means to further an investigation puts a private investigator on murky legal ground and may involve serious consequences if discovered.