If you’ve ever consulted a lawyer in Canada, you may have come across the term solicitor-client privilege (sometimes called lawyer-client privilege). More than just legal terminology, it is a cornerstone of the Canadian legal system. At its core, it means that anything you share in confidence with your lawyer remains private. This protection allows you to speak openly, ask difficult questions, and provide all the details your lawyer needs to properly advise you, without fear that your words will be used against you later.

You may not think much about it until you’re facing a legal issue; however, in those moments, knowing that your conversations with a lawyer are protected can be essential. It gives you the confidence to be honest and thorough, which in turn helps your lawyer give you the best advice possible.

Understanding Solicitor-Client Privilege

Solicitor-client privilege is a legal protection in Canada that keeps your communications with your lawyer private. It covers more than just conversations and extends to your emails, letters, and documents created for the purpose of getting legal advice.

The privilege belongs to the client, not the lawyer, and only the client, in the solicitor-client relationship, can choose to waive it. Canadian courts, including the Supreme Court of Canada, have emphasized that solicitor-client privilege is essential to maintaining public confidence in the justice system and must remain as close to absolute as possible.

Imagine if the government or opposing parties could easily force your lawyer to hand over your communications, people would be far less likely to seek a legal opinion, which would undermine the rule of law in Canada.

Privilege applies automatically when three conditions are met: you are communicating with a lawyer (or their legal team) acting in a professional role, the purpose of the communication is to seek or receive legal advice (whether orally obtaining legal advice or through written legal advice), and there is a clear expectation that the discussion is private. When these conditions are in place, your conversations and related documents are protected under solicitor-client privilege.

What Are the Three Types of Legal Privileges?

Legal privilege isn’t limited to just solicitor-client privilege. In Canada, there are three main types of legal privileges that protect different kinds of communications.

Solicitor-Client Privilege

Solicitor-client privilege protects confidential communications between a client and their lawyer made for the purpose of seeking or giving legal advice. This privilege is fundamental to the legal system because it encourages clients to speak openly and honestly with their lawyers. Ensuring that these communications remain private allows lawyers to provide accurate and effective advice because they have all the facts.

Litigation Privilege

Litigation privilege applies to communications and documents created specifically for the dominant purpose of preparing for litigation. Unlike solicitor-client privilege, it can include materials shared with third parties such as experts or investigators, as long as they are prepared in connection with ongoing or anticipated litigation. This privilege is temporary and typically ends once the litigation and any related proceedings have concluded.

Settlement Privilege

Settlement privilege, often referred to as “without prejudice” privilege, protects communications made during settlement negotiations. Its purpose is to encourage parties to resolve disputes out of court by allowing them to discuss settlement terms freely, without fear that these discussions will be used against them if negotiations fail. This privilege applies even if lawyers are not involved, provided the communication is aimed at reaching a settlement.

Key Limitations and Exceptions to Solicitor-Client Privilege

While solicitor-client privilege in Canada is very robust and upheld by the Supreme Court, it is not absolute. There are a few narrow exceptions and important limitations that clients should be aware of.

Communication Not for Legal Advice

Solicitor-client privilege only applies to communications made for the purpose of seeking or receiving legal advice. If a discussion or document is unrelated to legal counsel, it will not be protected from disclosure. For example, if a lawyer is providing general business or personal advice rather than legal guidance, those communications fall outside the scope of privilege. Similarly, informal conversations or social interactions with your lawyer that do not involve legal advice are not privileged. The privilege is tied specifically to the legal nature of the advice being sought.

Crime or Fraud Exception

Privilege does not protect communications intended to further unlawful conduct. If a client seeks legal assistance from a lawyer to commit or conceal a crime or fraud, those communications are not privileged. For example, asking a lawyer how to hide assets illegally or falsify documents would remove any expectation of solicitor-client privilege. The law draws a clear line between seeking legitimate legal advice and using legal counsel as a means to engage in wrongdoing.

Public Safety Exception

In rare cases, privilege may be overridden if maintaining confidentiality would pose an imminent risk of serious harm or death. If a client reveals information that indicates an immediate threat to an identifiable person or group, a lawyer may be justified in disclosing that potentially privileged information to prevent harm to that group or person. This exception is narrowly applied and typically only arises in extreme situations involving violence or significant public danger.

Innocence at Stake

Canadian courts recognize a limited exception to privilege when it is necessary to prevent the wrongful conviction of an innocent person. Known as the “innocence at stake” exception, this occurs only in exceptional circumstances. A court must be satisfied that there is no other way to prove the accused’s innocence and that disclosure of the privileged information is essential to avoid a miscarriage of justice. Even then, judges typically review the information privately before deciding if it should be released.

Clear Statutory Override

Although rare, privilege may be overridden by legislation that explicitly requires disclosure of otherwise protected information. Courts interpret such statutory overrides very narrowly and demand clear language before permitting any intrusion on privilege. General or implied authority is not enough. For example, regulatory or investigative bodies cannot access privileged communications unless legislation clearly states that privilege must give way in specific circumstances.

Waiver of Privilege

The only person who can waive solicitor-client privilege is the client. Waiver is typically deliberate, such as publicly sharing legal advice provided or forwarding privileged emails to third parties outside the lawyer-client relationship. However, privilege can also be inadvertently waived if confidential communications are disclosed too broadly or mishandled. Accidental disclosures may sometimes be remedied if addressed promptly; however, prevention is always the best approach. Clients should exercise caution when handling privileged communications to avoid unintended waivers.

Client Privilege vs. Confidentiality: What’s the Difference?

Although client privilege and confidentiality are closely related concepts in the legal profession, they are not the same.

Confidentiality is an ethical duty that applies more broadly than client privilege. Lawyers are bound by professional conduct rules to keep all information related to a client’s matter confidential, regardless of how it was obtained. This obligation extends beyond privileged communications and includes any knowledge a lawyer gains in the course of providing legal services to a client. Confidentiality also continues indefinitely, even after the lawyer-client relationship ends.

This means that all privileged information is confidential, but not all confidential information is privileged. Privilege is a legal protection that can be asserted to prevent disclosure in legal proceedings. At the same time, confidentiality is a broader ethical obligation that governs a lawyer’s conduct in handling client information.

How to Protect Your Privileged Communications

Protecting your privileged communications is essential to maintaining confidentiality and ensuring that your legal rights are preserved. Simple mistakes, like forwarding an email or including unnecessary recipients, can risk waiving privilege. Taking a few proactive steps can ensure that your communications with your lawyer remain secure and protected.

1. Limit who you share legal advice with. Keep it between you and your lawyer or essential team members.
2. Mark privileged documents or communications as confidential and legal in nature.
3. Avoid mixing legal advice with other business matters.
4. Keep communications private and avoid third-party presence in meetings with your lawyer.
5. Consult your lawyer before forwarding or sharing legal advice.

By following these best practices, you can reduce the risk of accidental waiver and preserve the strong legal protections afforded by solicitor-client privilege. Taking these steps not only safeguards your legal position but also supports a more effective and trusting relationship with your lawyer.

If you have questions about solicitor-client privilege or need trusted legal advice, the team at DLegal Law Office in Calgary is here to help. Our experienced lawyers provide practical guidance in a confidential and supportive environment, enabling you to make informed decisions with confidence. Contact our lawyer’s office today for your business, family, civil, estate planning, real estate, or employment law needs and get the advice you need.

The content of this article is intended to provide a general guide to the subject matter and should not be considered legal or other professional advice. To get detailed information regarding your specific circumstances, please discuss your situation with a lawyer or other professional. Refer to our Legal Notice  for more details.