Common interest: Commercial context – Originally, the extension of solicitor-client privilege to parties with a “common interest” was only applied in the context of litigation. It has since expanded to Canada to include certain business transactions “in the family of companies.” 20 The `exception of common interest` in contentious matters is based on the promotion of the proper functioning of the adversarial system. In the context of commercial transactions, the philosophical basis is different: the common interest of the parties in the successful and efficient conclusion of a financial transaction is recognized as a benefit for them and for the economy and society as a whole. In October 2008, a terminated employee filed an access to records request at the University of Calgary. The request was made under provincial access to information legislation. The university disclosed some documents, but withheld some because they were protected by solicitor-client privilege. The university had a disagreement with the Office of the Data Protection Commissioner over the submission of these documents. The disagreement continued at various levels until it was resolved by the Supreme Court in its November 2016 decision, about four years after the university settled the case with the dismissed employee. Exception of innocence of the accused: In R. v. McClure,6 the Supreme Court of Canada has recognized an exception to solicitor-client privilege where the innocence of a defendant is at stake. It has interpreted this exception very narrowly and is likely to apply only in the rarest of circumstances. Information disclosed under the accused innocence exception cannot be used against the client whose lawyer has disclosed the information.
As mentioned earlier, verifying the privileges and confidentiality of relevant electronic documents can be very costly and time-consuming. However, excessive disclosure and the hope of recovering accidentally leaked privileged documents is not a safe alternative to thorough verification in advance. The parties must make reasonable and bona fide efforts to detect and prevent the production of preferred material. [2] If they do not, there is a risk that they will have waived privileges, even if that was not their intention. Keep in mind that not all communications with a lawyer are protected. If you ask me which vet I take my dog to or what the impact of the budget is on student recruitment, it is clear that you are not seeking legal advice, and neither your request nor my answer will be considered privileged. Is the exception to the common interest privilege the same in the United States as it is in Canada? – In the United States, the “common interest exception” for solicitor-client privilege only applies in the event of a dispute. In the Third Circuit Court of Appeals` decision, In re Teleglobe Communications Corp.23, the court stated that the common interest privilege takes effect “when clients otherwise exchange privileged information with separate lawyers to ensure that solicitor-client privilege allows university employees to seek and obtain legal advice relating to their work without fear: that these communications will be forwarded elsewhere. If there is a dispute about whether the privilege has been properly claimed, the issue is often decided in a public forum such as a court or tribunal. The burden of proof of the existence of a lien usually rests with the party claiming the lien, and it is often a representative of the company who provides supporting information in the form of an affidavit in support of a claim of privilege. This exposes both the company and the individual to the possibility of reputational damage if the privilege claim is not upheld.
Even if the information is not covered by solicitor-client privilege, you have an ethical obligation to avoid disclosing your client`s affairs, even to family members. Confidentiality and loyalty obligations to a client, including a minor client, ensure that the client can freely share information with you and receive the best possible legal advice. In cross-border transactions, privileged communications should be clearly identified as such and disclosed only through jointly mandated legal counsel in order to preserve the protection of the “common privilege”. In contrast, solicitor-client privilege only applies to communications between you and your client for the purpose of legal advice. Privilege is rooted in the common law. If you are acting on behalf of a bankrupt client, you still owe that client an obligation of confidentiality. As a general rule, solicitor-client privilege is respected during insolvency proceedings and you may not disclose inside information to the insolvency administrator without the consent of your insolvent client. Universities are regularly asked to assert privileges to protect records from disclosure. Two notable cases involve the University of Calgary (cited above) and the University of Saskatchewan (CanLII, 2018). In these cases, universities processed access requests.
Both fought with their respective DPOs to avoid showing their privileged documents to the Commissioner. In both cases, the DPOs were interested in reviewing the documents to verify whether the privilege invoked had been properly invoked. In Canada, all privileged information exchanged between parties who have a “common interest” will continue to be protected by solicitor-client privilege. In Kennedy v. McKenzie,15 the Ontario Superior Court has held that a litigant privilege party must prove that the documents were prepared for the overriding purpose of existing, contemplating or anticipated litigation for one of the following reasons: Courts prefer not to interfere with privilege and are reluctant to allow a waiver to be implied. However, the courts have recognized that a waiver may be made on grounds of equity. In modern litigation, identifying privileged documents may require the review of several thousand documents. Because privilege is a highly contextual issue, careful consideration may be required to determine whether a document contains legal advice or communications for the purpose of obtaining legal advice, was prepared for the primary purpose of litigation, or contained an offer to settle or settle. The context required to determine whether a particular communication is privileged may not appear on the front of the document itself and may be apparent by reference to other documents. If there are potentially thousands of documents involving a lawyer (especially in-house counsel), such a review can be extremely expensive and time-consuming.
However, if a party does not conduct a thorough review, a blanket assertion of privilege may be difficult to defend and lead to allegations that privilege is being misused to protect non-privileged communications. If this allegation is well-founded, the perception that a party has attempted to conceal something may affect the perception of a court or tribunal of that party when deciding the case on the merits. This can be a significant issue if credibility is an issue in the underlying dispute. Your obligations of loyalty and confidentiality to your client remain the same, regardless of your client`s legal competence.