*this article was updated September 18, 2023
The point of solicitor-client privilege is to allow you to speak freely with your lawyer to obtain legal advice. You want to know your communications regarding advice will not be disclosed to anyone without your consent - not even through a search warrant. Yet the concept is often misunderstood by lawyers and clients alike and it is the subject of much litigation.
Not all confidential communications are solicitor-client privileged: they can be simply confidential – a much lower standard than solicitor-client privileged.
Only confidential communications (oral or written) between the lawyer and client made for the purpose of obtaining or providing legal advice are solicitor-client privileged. Also protected are initial discussions about whether or not a potential client will hire the lawyer.
Waiving or Losing your privacy protections
Since the privilege is there to protect the client, the client can choose to waive this protection, although rarely is it in their interest to do so. (There are exceptional cases where the lawyer can disclose the communications without consent of the client.)
It is easy to unintentionally waive the privacy protection, such as by disclosing protected information to a friend, or by using an email account to which you have given someone else access.
'Barrister-' or 'Solicitor-' or 'Lawyer-' Client Privilege?
The name itself is misleading. The privilege is actually lawyer-client privilege, although it is called solicitor-client privilege.
The
distinction between solicitors and barristers arose in Britain;
barristers went to court whereas solicitors did not. In Canada all
lawyers are authorized to be both barristers and solicitors. But some
lawyers choose never to go to court as a barrister and they work
entirely as a solicitor. I practise as both barrister and solicitor.
Contact me
This article is a general description of one aspect of solicitor-client privilege. It may or may not apply to your case. Clients can speak to me directly for a fuller description of the topic and instructions on how to guard the protections. To make an appointment to discuss your case, call 613.203.4874, or email me through the contact form on my main website accessed by clicking here.