19 September 2013

What's Solicitor-Client Privilege, and Can I Use it to Protect My Documents or What I Tell Other People?


There are lots of legal information privileges out there. Spousal privilege. Informer privilege. Even priest-penitent privilege (in Quebec).

The thing all those privileges have in common is the restriction of the disclosure or introduction as evidence into the legal system of what someone has said or written to another person, because public policy believe that fostering confidentiality within that kind of relationship is more important than exposing what is communicated, even when that communication might become important evidence in court.

In essence, legal privilege is supposed to foster frank and complete openness and honesty between certain persons. So that spouses can whisper secrets to each other, without the risk that one spouse will be hauled into court and forced to spills all the secrets the other spouse has whispered to him. Or so that informers can whisper secrets to their police handlers, without worrying too much that they might later get injured or killed because their identity will be shielded from court and public view.

Solicitor-client privilege is another variation on those various information privileges, which encourages the client to tell his lawyer the truth, the whole truth, and nothing but the truth, without fear that the lawyer will later be forced to tell a court what he was told by the client. But even solicitor-client privilege has its limits.

For instance, you can't hand over all your most incriminating pre-existing documents to your lawyer, in the hope that the mere act of handing them over will protect them from later police search and seizure. Writing a new letter to your lawyer explaining your situation and seeking advice might be privileged, and creating documents for your lawyer to assist with ongoing court litigation might be privileged, but it is the communication process that is the key part of the privilege creation, not the mere fact that the lawyer is now holding the smoking gun.

Law offices can be subject to search warrants, just like other physical locations. There are all sorts of special rules governing such law office searches which seek to protect client confidentiality. When serving as a Federal Prosecutor I used to spend a lot of time in court arguing about the admissibility of business records that had come into the possession of lawyers. But there is no absolute bar on such admissibility - just certain presumptions that might shift the burden of proving admissibility one way or the other.

And while honesty with your lawyer may be the best policy, and generally will be protected by privilege, you need to realize that your lawyer later in your case won't ethically be able to tolerate you giving a completely different story to the court. Confessing three murders to your lawyer might be protected by privilege, but later getting on the stand and denying under oath that your committed any of the crimes will likely cause your lawyer to withdraw from your case because she can't ethically support your perjury. So make sure that whatever you do tell your lawyer under protection of privilege remains your story later on, unless you have a very good reason for changing your story - like because you later remember important new details about a case.

The most positive angle to solicitor-client privilege is that it may by the strongest of the legal information privileges, and is the most widely supported by the courts, legislators and the public. By contrast, there is serious talk of trying to eliminate spousal privilege!

Thus the courts will be very, very cautious before ordering disclosure of anything you tell or have given to your lawyer. While other professions like medical doctors or accountants may have duties of confidentiality to their clients, and court will respect client "privacy" to the degree reasonably practicable, those are not "privileged" relationships, such that those professionals can be legally compelled in court to disclose what you have told them, and to produce records created based on information you have shared with them.




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