Last updated on September 7, 2020
Confidentiality is a duty owed by lawyers to clients under the rules that govern a lawyer’s professional conduct. This duty of confidentiality applies to all information concerning the affairs of the client. Privilege on the other hand, is not only a rule of evidence, solicitor-client privilege is a substantive right that allows clients to communicate openly with their lawyers knowing that these communications are protected from disclosure to the courts or an opposing party in litigation. Not all confidential lawyer-client communications, however, are privileged as they must relate to legal advice in order for a communication to have privilege be attached.
The Supreme Court of Canada held in Pritchard v Ontario (Human Rights Commission), that in order for solicitor and client privilege to apply, the party asserting the privilege must establish the communication meets the following criteria:
(a) the communication was between a solicitor and client;
(b) it must entail the seeking of legal advice; and,
(c) the advice sought must be intended to be confidential by the parties.
Looking for a deeper refresher on solicitor-client privilege? Check out this handy-dandy FAQ for in-house counsel that the Canadian Bar Association has together. Of course, please refer to the rules of your governing body for the detailed rules in your jurisdiction.