Solicitor-client privilege is a valuable component in the Canadian legal system, and in the case of a personal injury lawsuit. The term solicitor-client privilege refers to the confidentiality of communication between a lawyer and his/her client specifically in relation to obtaining legal advice. Once a relationship has been established between a lawyer and their client, the lawyer cannot divulge any information about conversations between the two individuals outside of their law firm, without the permission of their client. This privilege remains even after the solicitor-client relationship has ended and the file has come to a close, with a few exceptions. This privilege also continues even after the death of a client.
One of the basic principles of the solicitor-client relationship is the ability to speak freely. In order for the client to feel comfortable doing so, it is advantageous that conversations between the lawyer and the client remain confidential. This is beneficial to your lawyer in order for him/her to fully understand the legal situation so that he/she can offer the best possible legal advice.
THE PURPOSE OF THE SOLICITOR-CLIENT RELATIONSHIP
In the 2001 decision of R. v. McClure, the Supreme Court of Canada emphasized how fundamental solicitor-client privilege is in the legal system in Canada by stating that it must be “as close to absolute as possible to ensure public confidence and retain relevance”.
THE REQUIREMENTS FOR SOLICITOR-CLIENT PRIVILEGE
There are three main requirements required for a conversation between a client and his/her lawyer to be considered privileged.
The first is that the communication must take place between a lawyer, acting in a professional capacity at the time of the communication, and his/her client. If a lawyer is asked questions during an informal gathering of friends, this will not likely meet the criterion necessary to be considered solicitor-client privilege.
The second requirement is that communications must be made in the course of seeking or giving legal advice.
The third requirement is that the circumstances must indicate that the communication with the lawyer was meant to be in confidence. The fact that the meeting is privileged does not explicitly need to be stated to actually apply.
THE EXCEPTIONS TO SOLICITOR-CLIENT PRIVILEGE
There are a few exceptions to solicitor-client privilege that need to be explained when discussing this important principle.
The first exception is referred to as waiver. Privilege itself belongs to the client, and it is therefore the client’s right to waive privilege. The waiver of privilege must be done so voluntarily. A client may either expressly or through informed consent waive their right to privilege and allow their lawyer to discuss the confidential information with a third party.
The second exception involves physical objects, which are not protected by solicitor-client privilege. Only conversations between a client and his/her lawyer are protected, not objects or documents that may pre-exist the solicitor-client relationship.
The criminal action exception is another exclusion to solicitor-client privilege. If a conversation itself is criminal or legal advice is being obtained to commit a crime, these situations will not be protected by privilege. However, privilege may extend to the disclosure of crimes that have already been committed.
The public safety exception applies when a lawyer can break privilege if a threat to public safety outweighs the need to protect privilege. The lawyer must consider whether there is a clear risk to identifiable person or group; if there is a risk of serious bodily harm or death; and whether the threat of danger is imminent or immediate.
THE IMPORTANCE OF BEING STRAIGHTFORWARD WITH YOUR LAWYER
One of the main purposes of solicitor-client privilege is to encourage complete, frank and straightforward communication between lawyers and their client when seeking and providing legal advice with respect to a personal injury matter. Open and honest communication between lawyers and their clients helps to ensure the best possible legal representation. In order to obtain a helpful legal opinion, a lawyer requires the complete picture of the situation in question.
It is therefore important that all clients are forthcoming and upfront with their lawyer regarding the details of their case. Only with the complete and honest truth about the events in question can a lawyer devise a meaningful strategy to properly represent their client. Withholding any information from your lawyer can lead to unexpected events during your case that could have easily been avoided.
Hiring a lawyer is one of the most important decisions you will make following your accident, and the quality of legal representation you receive can have a major impact on your recovery. When you hire Cuming & Gillespie LLP, you are hiring award-winning lawyers with over 20 years of experience. You can rest assured that your case is in the best hands.
If you or a loved one have suffered serious personal injuries as a result of the negligence or carelessness of a third party, it is important to have an experienced personal injury lawyer by your side. The professionals at Cuming & Gillespie LLP are very familiar with how personal injuries can negatively impact one’s life and we want to help you during this difficult time by advocating on your behalf. Call our office for a free initial consultation online or at 403-571-0555 to determine how we can help you with your personal injury claim.