Solicitor-Client Privilege Is Sacred . . . Except When It Isn’t

Solicitor-client privilege is the strongest privilege protected under law but at times lawyers’ honour it in the breach. In Canada, the Privilege has been elevated to constitutional or quasi-constitutional status in many circumstances. In fact, the Supreme Court has accorded the Privilege stronger protection than most Charter rights because it is not subject to the reasonable limits test of section 1. In the course of researching my book Solicitor-Client Privilege, I came to realize that in Canada the Privilege enjoys higher status and stronger judicial protection than in virtually any other country. That’s why I came to refer to solicitor-client privilege as “the Privilege”, with a capital “P”.

The elevation of a solicitor-client privilege to a super-right in Canada has been largely due to successful advocacy and lawyers and legal groups like the Canadian Bar Association and the Federation of Law Societies. The latter spent more than a decade consistently shellacking the Government of Canada and lawyers at the Department of Justice over the application federal money laundering regulations to lawyers.

Advocates have succeeded in vastly expanding the zone of the Privilege to extend far beyond its core of confidential communications between client and lawyer to include things like lawyers’ accounts and fees because they might reveal something which might reveal something that might reveal something about confidential communications. The result is that here in Canada there is a large overlap between solicitor-client privilege and the lawyer’s ethical duty of confidentiality. Both are zealously protected by the profession. Except when they are not.

Some lawyers seem quite nonchalant in abrogating the Privilege and their ethical duty of confidentiality when it suits them. Years ago, the Globe and Mail published a 2000 word response by Eddie Greenspan to criticisms leveled against him by his former client Conrad Black in his book about his experience with the American legal system which resulted in him serving more than three years in U.S. prisons. I feel quite confident in opining that the Privilege would have protected Greenspan (and Black) from being compelled to testify about the same subjects in court. But Greenspan (and the Law Society of Upper Canada) felt quite comfortable in ignoring the Privilege to attack a former client.

I carry no brief for Donald Trump who I view as endangering the very core of American democracy. However, I have no time for his former lawyer Michael Cohen profiting off a tell-all book about his former client.

Thus, I was both surprised and disappointed when I read former Prime Minister Jean Chrétien’s latest installment of his reminiscences and stories. In his book, Chrétien devotes a chapter to his years in legal practice in Shawinigan between 1959-64. As this is a book of stories, Chrétien shares anecdotes about his cases and his clients and in so doing he reveals communications with his former clients. These stories are little more than quaint and mildly entertaining, and no state secrets are revealed so what’s the harm?

I shouldn’t be so hard on the octogenarian former Prime Minister and still-practising lawyer because he hasn’t done anything different from many lawyers in oral histories or memoirs (the few that exist in Canada).

The self-proclaimed “Little guy from Shawinigan” is not the problem. It’s us. The legal profession. We say that the ethical duty of confidentiality survives the termination of the solicitor-client relationship, and we say that solicitor-client privilege lasts forever, surviving even the death of either lawyer or client. We broadly boast of secrets that lawyers take to their graves.

We say that the Privilege is sacrosanct; that the privilege is inviolate and cannot be abrogated. But we also seem to be completely comfortable with carving out implied exceptions for ourselves as lawyers. When it comes to lawyers’ own self-interests, solicitor-client privilege is not quite so sacred.

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