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.




14 September 2013

New Public Law Advocacy Headquarters

The New Public Law Advocacy Headquarters. Photo credit: Natalie Rowe. 
Yes, I know, I know. No new posts for two months. I've not be providing my reading public the ongoing quality legal information they've come to expect. But there is a reason. The new Public Law Advocacy Headquarters!

Yes, that's right, I've bought an office building and have been doing a bit of decorating, plus installing a few essentials like proper air conditioning. Well, maybe the glass block wall wasn't an essential, but it sure looks good. 

You, my clients and readers, have loyally supported my Internet presence, but I thought a bit more of a physical presence could be a good thing. It's conveniently located adjacent to a Highway 401 exit (Exit 814), in the town of Lancaster. 

Yes, as in War of the Rose House of Lancaster. Producer of Henry the IV, V and VI of England (and II of France). I'm told its namesake town in England comes from Loncastre, meaning fort on the River Lune, and among its claims to fame on Wikipedia include producing "the all-girl punk-rock band Angelica." Maybe they never made it across the pond? 

I've also hired an articling student, the most talented Matt MacLean, to assist you better in French or English. For those not in the know, think of articling a bit like the position of clerk Bob Cratchit in the employ of Scrooge in Charles Dickens' a Christmas Carol. Except I'm hopefully a very benevolent post-ghost visit Scrooge. Articling students have finished all their legal studies (in Matt's case degrees in both common law and civil law, as well as an undergraduate degree, in addition to bar school), but need to do a practical work term of 10 months to fully qualify as a barrister and solicitor. 

The new PLA Headquarters will be having an open house later in October or in early November, so that all our old and new friends can come by to check things out. Stay tuned for news of it on the blog. 

Here are a couple of additional views of the view of the still unfinished new digs.

Photo credit: Natalie Rowe

Photo credit: Natalie Rowe
Also on my list of recent happenings was attending with my friends from the Mohawk Nation at Akwesasne at their annual Akwesasne International Powwow, held last weekend on the 7th and 8th of September on Cornwall Island, which is the Ontario part of their very inter-provincial and international community which also includes territory in Quebec and the United States, all bordering the beautiful St. Lawrence River. Akwesasne means "Land Where the Ruffed Grouse Drums," and it remains a great area for wildlife as well as for Aboriginal culture, which was well on display last weekend with dancing, singing and drumming competitions, great artist vendors and great food. 

For lunch I had an Indian Taco expertly and tastily made by folks from the Shubenacadie Indian Brook First Nation, who travelled all the way from Nova Scotia where I used to live and work, and served for a time as Canada's lead negotiator with the Mi'kmaq and Government of Nova Scotia under the Tripartite Forum negotiations process. Here's a link to a recipie and a few photos of a similar Indian Taco at Hilah Cooking.

We bought some art from the talented Jordan Thompson, brother of Kelly Thompson of the Aboriginal Rights and Research Office of the Mohawk Council of Akwesasne which I am working with on a constitutional test case. You can see his art over at Mohawk Art and Design

And we also enjoyed the dancing, singing and drumming competitions, which have various rules and prizes

I urge all of you in Eastern Ontario, Western Quebec, and North-Western New York state to consider coming out to the Powwow next year, usually held at the start of September. You'll find a warm welcome, and have a rich experience that you might not have thought possible so close to home.