Written By Scott H.D. Bower and Russell J. Kruger
Solicitor-client privilege applies broadly to the continuum of communications concerning matters within the solicitor-client relationship, the BC Court of Appeal recently held in British Columbia (Attorney General) v. Lee, 2017 BCCA 219 (Lee).
In Lee, a government employee inadvertently released a 19-page package of email exchanges between a government lawyer and staff in response to a freedom of information request by Ms. Lee, a lawyer. Once the mistake was discovered, a lawyer from the government immediately contacted Ms. Lee to assert solicitor-client privilege over the documents. Solicitor-client privilege, also known as legal advice privilege, applies to communications between a lawyer and client where the communication involves the seeking or giving of legal advice and is intended to be confidential. After Ms. Lee resisted the privilege claim, the Crown brought an application to enforce the privilege. The chambers judge held that some of the documents at issue were protected by solicitor-client privilege, which had not been waived, while others were not. The Crown appealed the latter finding.
The BC Court of Appeal noted that "protection of … solicitor-client privilege in Canada has evolved from a rule of evidence to 'a fundamental and substantive rule of law'". As such, the privilege "'must remain as close to absolute as possible'". Once the privilege is established, "it applies 'to all communications made within the framework of the solicitor-client relationship'", and in particular, "the continuum of communications in which the solicitor provides advice". Severance of part of the communications may be appropriate where advice is given "on matters outside the solicitor-client relationship". However, it should only be done where there is no risk "that the privileged legal advice will be revealed or capable of ascertainment".
On the facts, the Court held that a disputed portion of the communications severed by the chambers judge was a continuation of the privileged advice. Moreover, while the respondent argued that part of the lawyer's advice was more "strategic" than "legal", the Court agreed that "legal advice is not confined to merely telling the client the state of the law. It includes advice as to what should be done in the relevant legal context". Thus, "[a] request by a client to provide legal advice that best advances a particular strategy or objective does not take the subsequent advice outside the context of the protected solicitor-client relationship". Further, in the context of advice given to a statutory decision-maker, legal advice may still "influence the decision-making of the client", such that "[a]dvice provided … as to what should be done in order to be legally defensible is still legal advice".
Finally, the Court found that there was no waiver of the privilege, since "inadvertent disclosure of a privileged document cannot without more lead to an implied waiver". Where counsel receives documents that appear to be protected by solicitor-client privilege, the proper procedure is to notify opposing counsel "to ensure that the documents [have] been released, and … privilege … waived, intentionally".
Lee is thus an important reminder of the breadth of solicitor-client privilege, with the privilege attaching to the range of communications within the solicitor-client relationship. While severance is possible, it is to be narrowly construed. Legal advice that provides direction to advance a strategy or objective is still protected.