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Does Solicitor-Client Privilege Apply to an Attorney-General Who Is Not a Lawyer?

No, it should not. That’s the best answer under existing doctrine and I think it is also the right answer.

In my previous post The Curious Case of the Non-Lawyer Attorney General: White Tiger of the Legal Profession, I reviewed the BC courts’ rejection to a challenge to a non-lawyer being appointed to the top legal job in the BC government.

Since then, BC Premier Christy Clark appointed a lawyer (!) as Justice Minister and Attorney General (The Hon. Suzanne Anton).

Despite this, the trend of non-lawyers being appointed as AGs is not abating and the issue of whether Solicitor-Client Privilege covers their advice is likely to come before the courts eventually. Should Solicitor-Client Privilege protect advice from a non-lawyer Attorney General?

The Supreme Court adopted Wigmore’s definition of solicitor-client privilege in 1927:

Where legal advice of any kind is sought from a professional legal adviser, in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the privilege be waived.[1]

It is difficult to see how a non-lawyer Attorney General could qualify as a “professional legal adviser”. The non-lawyer Attorney General is certainly not “a member of the legal profession”. While most Law Societies make incumbent Attorneys General ex-officio members of their governing bodies, this does make non-lawyer Attorneys General members of the legal profession any more than it makes lay benchers members of the legal profession. At best, a non-lawyer Attorney General is an ad hoc or temporary member of the legal profession.

As Madam Justice Stromberg-Stein held in Askin v. Law Society of British Columbia, 2012 BCSC 895, the Lieutenant Governor has an absolute and unfettered right to appoint whomever she or he wishes as Attorney General, whether or not that person is a lawyer.

It is anomalous for the chief legal adviser to the Crown in a province to be a non-lawyer. This anomaly seriously undercuts arguments about restricting the provision of legal advice to lawyers and limiting Solicitor-Client Privilege to lawyers. If the Premier and members of the Executive Council are permitted the benefit of being advised by a non-lawyer, why are ordinary citizens denied this right?

Under existing doctrine, it is difficult to reach any other conclusion other than that legal advice from a non-lawyer Attorney General is not encompassed by Solicitor-Client Privilege because a non-lawyer Attorney General does not qualify as a “professional legal adviser”. This does not mean that all the advice provided by a non-lawyer Attorney General will be subject to disclosure. Much of the legal advice that a non-lawyer Attorney General provides will be the subject of other privileges such as: crown privilege, litigation privilege and prosecutorial discretion.

In Canada, lawyers have zealous in asserting that only they can enjoy the benefit of Solicitor-Client Privilege. Courts have accepted their arguments that “the Privilege” (as I like to call it) should not apply to tax accountants, patent agents, notaries or paralegals, even if those professionals are providing the same advice that lawyers would.

It is both anomalous and unfair to deprive individuals of the protection of the Privilege if they seek advice from such non-lawyers but grant the Crown the same benefit when there is a non-lawyer Attorney General. In the first case, ordinary citizens may be compelled because of cost or circumstances to seek advice from a non-lawyer. In the second case, the Premier has chosen to install a non-lawyer in the position as the top legal adviser to the Crown.

At the end of the day, the situation of the non-lawyer Attorney General is truly sui generis. As I said in my previous post, the non-lawyer Attorney General is the white tiger of the legal profession.

It seems totally at odds with Solicitor-Client Privilege to assert that legal advice from the Crown’s legal advisor would not be privileged. However, it is also totally at odds with the position of the Crown’s legal advisor to have a non-lawyer hold that position.

Premiers have the power and the right to appoint non-lawyers as their chief legal advisers. But they should not expect that Solicitor-Client Privilege will shield the legal advice that they or members of the government receive from non-lawyer Attorneys General


[1] Wigmore on Evidence, McNaughton rev. ed. (Boston: Little Brown, 1961) vol. 8 at s. 2292.

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Comments

  1. I disagree. I think the ‘sui generis’ nature can extend to granting the non-lawyer AG’s legal advice privilege. After all, where is that advice coming from? Absolutely no doubt that it comes from lawyers reporting to the AG. The AG is a conduit. How much legal value even a lawyer AG adds depends a lot on the individual AG and on the question on which the advice is given.

    It seems to me that Professor Dodek’s analysis is too stuck in rigid categories, without allowing for (a) the difference of the sui-generis AG that takes him/her out of those categories, and (b) the legal nature of the advice being given. The AG is still Chief Law Officer of the Crown, and that status can be accompanied by privilege. The fact that Wigmore didn’t happen to mention the possibility of such an extension is not very persuasive against it.

    The political advice of a lawyer AG would not be privileged, any more than the policy advice of any other minister (whether a lawyer or not).

    One might advance another line of attack, which is that the AG’s advice to government does not need solicitor-client privilege to ensure that it will be given in confidence. Confidential Cabinet communications are protected in other ways. So the legal advice of an AG, whether or not a lawyer, should not have solicitor-client privilege.

    However, is this question really very important? Probably almost every example of privilege claimed by government is for advice given by actual lawyers in government departments or ministries to their operating clients, or advice given to the AG or other ministers – not advice given by the AG. Whether the AG is a lawyer or not does not affect the quality of this advice, or the need for privilege for it (since not all internal government communications are covered by Cabinet or similar privileges, yet there is an advantage in its remaining confidential.)

  2. Thomas Harrison

    One could argue for the extension of S/C privilege to a non-lawyer AG. But it seems that such an argument would be a theoretical extension of the current constitutional framework. It might also be possible to say that in his/her dual role, as both AG, and as Chief Law Officer of the Crown, that a non-lawyer AG should exercise the same sorts of privilege as independent members of the Bar (whether they be government lawyers or not). There are few, if any, absolutes in Canadian law, so much is possible, but at this point these arguments have not yet been made and accepted as good law.

    While not much may turn on the question in the normal and regular affairs of government, as has been pointed out, it is often in the face of exceptional and difficult issues that may also represent highly charged political crises that these powers may become important. That is, it provides a formal constitutionally recognized voice to an office holder who is also an independent member of the Bar, to act in accordance with their professional obligation to provide legal advice directly to the Crown directly. In this respect, my view is that the question of whether or not S/C privilege might be available to a non-lawyer AG, or not, is only one of perhaps many issues and implications for the appointment of non-lawyers as most senior legal officials in our governmental framework.

    A very interesting discussion!

  3. I would bet that a Canadian court would find a way to make the legal advice of the Chief Law Officer of the Crown to the government subject to solicitor-client privilege, on whatever theory was required to justify it. The alternative – requiring the disclosure of the advice to adverse parties or to the public under FOI statutes – would be unpalatable.

    FOI statutes sometimes have an ‘overriding public interest’ provision that might allow a breach of privilege in the rare appropriate case, but I don’t foresee that a court would find no privilege because of the status of the AG in order to get public disclosure of an opinion or advice.

  4. The non-lawyer AG is a concerning trend to be sure but I think that you’d have a hard time avoiding privilege with one. If we extend privilege to students acting as pro-bono counsel with Legal Aid offices, as we do, and must, all across the country, certainly the Court would do so for an AG.

  5. John is correct.

    I’d state the issue even more broadly than he has, though.

    If a non-lawyer AG requires a non-disclosure privilege equivalent to what a lawyer AG would have in order to allow the AG to perform the AG’s function properly, that privilege will be found to exist by the courts if it does not already exist by statute.

    Our legal system isn’t based on labels. It’s based on principle. Labels are tools to make analysis easier, nothing more.

    In our form of legal system, non-disclosure privileges may be created by statute or the judiciary. We already have examples of privileges of that sort which do not require, in any way, the involvement of lawyers or the giving of what amounts to legal advice.

    The Wigmore-criteria analysis is nothing more than a set of criteria we’ve adopted to justify the existence of a non-disclosure privilege Other instances may require require other criteria. If the Wigmore analysis is not applicable, and statute does not apply, we’ll develop other analysis.

    In my preferred context, my response to Adam’s post would have been to do nothing more than mention Donoghue v. Stevenson because if that wasn’t a sufficient answer, we’d both realize we’d never agree but would agree to disagree, so I’ll stop here.

  6. I find myself taking the same line of thought as John and David, and I think Garret’s point proves it well. Our system is principle based, and looking at the principle behind solicitor-client privilege makes it obvious why we extend it to cover advice provided by SLA volunteers. I don’t think it’s a big stretch to see a Court also extend that to a non-lawyer AG.

    However, I would disagree with the frequently repeated comments about non-lawyer AGs being concerning. Given that Ministers are the CEOs of their department, shouldn’t the skill desired be management, not the ability to be an employee in the department?

    Further, the appointment of a non-MD as Health minster, non-CA as Finance Minister, non-teacher as Education Minister or non-PEng as Transport/Infrastructure Minister never seems to get those groups in an uproar. On the other hand, a non-lawyer AG never fails to get the legal world ablaze. It’s the same type of reaction that I see whenever bringing non-legal management into a firm is discussed. Very protectionist but seemingly blind to that fact that other professions might have a similar level of expertise in other areas.

  7. What’s wrong with a non-lawyer statesman aspiring to be AG ,with non-absolute privileges (including S/C ), whilst balancing three roles (executive, legislative and judiciary) and skillfully separating the powers of doctrine? Absolutely nothing. What makes a good AG is the ability of the individual to put public interest above the interest of his or her political party and above the interest of the government as a whole. (Note: Self-Interest is not an option; abuse of power and extravagant spending.) The AG who can fulfil their duties with judicial discretion and independence is a keeper even if they are considered the “white tiger of the legal profession” by some. Regrettably, our parliamentary democracy still allows the AG to be appointed by the PM even if the individual has had an embattled and scandaled riddled career in other ministries ….guess what, he is a lawyer.

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