The Court of Appeal of England and Wales has decided that no equivalent of solicitor-client privilege exists for legal advice provided by accountants. Prudential PLC v Special Commissioner of Income Tax, [2010] EWCA Civ 1094.
The Court had no problem with the idea that accountants might give legal advice, finding it common in tax matters. It left the question to Parliament, however. Apparently some government committees had recommended the extension of privilege to such cases in the past, but Parliament had not acted on the recommendation. Thus the absence of a privilege by statute was not an accident, and it was not for a court to create a privilege where Parliament had chosen not to.
The English court seems to have gone to some lengths to explore the nature and incidence of privilege generally, as Canadian courts have done from time to time on solicitor-client privilege, and litigation privilege.
Is there any Canadian law on privilege for legal advice given by accountants, or would a Canadian court be shocked, shocked! by the notion that accountants might give such advice?
The Supreme Court of Canada this morning created a journalist-source privilege, whose application it said was to be determined case by case, as distinct from a 'class-based privilege' like solicitor-client privilege or police-informer privilege where the fact that the witness belongs to the specified class in the specified relationship is enough to establish privilege. I have not read the unanimous decision closely to see if it might provide any comfort for accountants giving legal advice.