The issue is not solicitor-client privilege!

Many of the discussions around what Ms. Wilson-Raybould can and cannot say regarding the SNC-Lavalin matter cite solicitor-client privilege. With respect that is all wrong. Solicitor-client privilege is an evidentiary rule that protects lawyers and clients from being compelled to testify about communications between them for the purposes of obtaining legal advice.

The principle in question here is the lawyer’s duty of confidentiality that is contained in Chapter 3 of the codes of conduct of many law societies (this link is to the interactive code of the Federation of Law Societies of Canada). Article 3.3 of the Code of British Columbia states:

3.3-1 A lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information unless:

(a) expressly or impliedly authorized by the client;

(b) required by law or a court to do so;

(c) required to deliver the information to the Law Society; or

(d) otherwise permitted by this rule.

Practically speaking this means that lawyers have a duty not to talk about their client’s business unless one of the above conditions are met. That duty is a continuing and indefinite duty even after the legal relationship has ended. Commentary 8 and 9 to the rule show how expansive this duty is.

Solicitor-client privilege only deals with a subset of the matters that are confidential. Lawyers can be compelled to testify about matters that are merely confidential but, subject to some exceptions, cannot be compelled to testify about matters that are privileged.

Let me illustrate with an example:

  1. Client owns a piece of real estate that is surrounded by real estate owned by Flintstone.
  2. Client wants to get road access to his property. He asks his Lawyer how he would do that.
  3. The Lawyer replies that if client could negotiate a right of way over Flintstone’s property the problem would be solved. Lawyer outlines the possible terms of a right of way.
  4. Client thinks that is a good idea and tells Lawyer that he will pay up to $1,000 for a right of way on the terms that were outlined. He directs Lawyer to make an offer to Flintstone within those limits.
  5. Lawyer approaches Flintstone and offers $500 for the right of way.
  6. Flintstone rejects the offer.

All of these items are confidential. The Lawyer has an ethical duty not to discuss these matters with anyone else. However, items 2, 3 and 4 are also subject to solicitor-client privilege. Practically speaking this means that the Lawyer should not be discussing any aspect of the possible transaction. However, if a legal dispute arose the Lawyer could be compelled to testify about the offer that he made to Flintstone and the fact that Flintstone rejected that offer. Unless one of the exceptions to privilege applied the Lawyer could not be compelled to testify about items 2, 3 and 4 because they are either advice or instructions from the Client.

Author: Tom Jarmyn