Solicitor client privilege means that what you tell a lawyer for the purpose of getting legal advice cannot be disclosed to anyone, including a court, a police officer, an insurer or the other side. It attaches from the first consultation, before any money changes hands and whether or not you go on to hire that lawyer. You own the privilege, and the lawyer holds it in trust for you. It lasts after the file closes, and it survives your death.
The exceptions are narrow and well defined. Almost every real loss of the protection comes from the client giving it away by accident.
The Protection Starts at the First Conversation, Not at the Retainer
The Supreme Court of Canada decided this decades ago in Descôteaux v Mierzwinski. A person who consults a lawyer for legal advice is protected from the moment the consultation begins, including the information given while deciding whether to take the case.
A free first meeting is a safe place to say the worst fact in your file. It is protected even if you leave and hire nobody. The note on what happens at a free consultation sets out what a first meeting involves.
Solicitor Client Privilege Belongs to the Client
The lawyer holds it, the client owns it. Only the client can waive it, and the lawyer cannot disclose the communication on their own judgment, cannot be compelled by a court to disclose it, and cannot hand it over to the police under a search warrant without the protection being determined first.
This is why a lawyer will not confirm to a caller that a person is even a client. It is not evasiveness. It is the rule working.
The Supreme Court Treats It as Close to Absolute
Canadian courts have described the protection as a principle of fundamental justice, above the level of an ordinary rule of evidence, and they have set the bar for overriding it very high. The reasoning runs through decisions of the Supreme Court of Canada over the last forty years.
The practical consequence is that a court will look hard for another route to the same information before it touches a privileged communication, and will usually find one.
What Is Covered and What Is Not
Covered: communications between you and your lawyer, made in confidence, for the purpose of giving or receiving legal advice. That includes emails, texts, the lawyer’s notes of your meeting and the advice you get back.
Not covered: facts. Privilege protects the communication, not the underlying event. Telling your lawyer where you were on a Tuesday does not make your whereabouts secret; it makes your conversation about them secret. A document that existed before you sent it to your lawyer does not become privileged by being sent.
Also not covered: business advice with no legal content, and communications made in the presence of a third party who did not need to be there.
The Three Real Exceptions
Public safety. Where a communication discloses a clear, serious and imminent risk of death or serious bodily harm to an identifiable person or group, a lawyer may disclose what is needed to prevent it. The Supreme Court set that test in Smith v Jones.
Future crime. Advice sought to commit a crime or a fraud, rather than about one already committed, is not protected. Telling a lawyer what you did is protected. Asking a lawyer to help you plan what you are about to do is not.
Innocence at stake. In a criminal trial, a privileged communication may in rare circumstances be ordered disclosed where it is the only way to prevent the conviction of an innocent accused. The threshold is deliberately hard to meet.
Waiver Is How the Protection Is Usually Lost
Clients give it away, almost always without meaning to. Forwarding your lawyer’s advice email to a friend, a coworker or a family member can waive the protection for that advice. So can posting about it, discussing it on a recorded line, or telling an adjuster what your lawyer said.
Keep it inside the relationship. If you want a family member in the meeting, ask the lawyer first, because there are ways to structure that which do not break the protection.
Insurers, Employers and the Other Side Cannot Get at It
An insurance adjuster asking what your lawyer has told you is asking for something you do not have to give and should not give. The same applies to an employer, an investigator and the defence lawyer at an examination for discovery.
What the other side can ask about is facts: what happened, what your injuries are, what treatment you have had. That distinction is set out in the note on the discovery process, and it is the reason a lawyer prepares a client before that day.
It Matters Most on a Criminal File
An accused person who cannot speak freely to counsel cannot be defended. The right to counsel on arrest exists for this reason, the call is private, and what is said in it stays between the two of you. The sequence from arrest onward is set out in the criminal process guide and in the chapter on the right to counsel.
Say nothing to police before that call, and everything to the lawyer during it. The advice is only as good as the facts it is built on.
Confidentiality Is Broader, and Different
Privilege is a rule of evidence that keeps a communication out of a courtroom. Confidentiality is a professional duty that covers everything a lawyer learns about a client from any source, and it binds the lawyer whether or not the information would be privileged.
Both are enforced by each province’s law society, and a breach is a discipline matter. The practical effect for a client is that the whole file, and not only the conversations, is treated as private.
What This Means Before You Make the Call
You can describe your problem to a lawyer honestly, including the parts you would not tell anyone else, and it goes no further. That is the point of the rule.
The firm takes those calls from every Atlantic province, through the Saint John office, for the matters listed under what we can do for you and on the criminal defence page.