Secrecy of Lawyer-Client Communications: a Fundamental Right

This article deals with professional secrecy solely in a civil-law context, and not in the context of either penal or criminal law.

For some years now, as various statutory and regulatory rules have grown stricter, particularly in the financial services sector, regulatory agencies such as the Agence de revenu du Québec, the Autorité des marchés financiers and other such bodies are increasingly relying on legislative provisions that give them the power to investigate, search and seize.

Because the secrecy of lawyer-client communications is a constitutionally protected right at both the federal and provincial levels, courts will often appoint an independent counsel as amicus curiae to ensure that this fundamental right is protected. The same protective mechanism is also used in conjunction with Anton Piller type orders.

The basic principles

Professional secrecy is not only a deontological duty, but a fundamental right protected by the Canadian Charter of Rights and Freedoms, the Civil Code of Québec¹ and several other pieces of legislation². It is a “substantive fundamental right”³ that has two components, i.e. the obligation of confidentiality stemming directly from the lawyer-client relationship, and the immunity from disclosure which protects the client, in judicial proceedings, from non-authorized disclosure to third parties of information provided in confidence to counsel⁴.  It should be remembered however that the right belongs to the client, and only the client can waive it⁵.

The constituent elements

Despite the importance of this substantive fundamental right, not everything communicated by a client to counsel is necessarily protected by the professional secrecy privilege. It is not the fact that something is communicated to a lawyer that makes it privileged, but rather the content, scope and purpose of the communication, and the context in which it was made⁶.

There are three criteria for determining if a communication is privileged:

1. The communication must be a licit one between a client and the latter’s lawyer, who must be acting in his or her professional capacity;
2. The communication must be related to the provision of advice or a legal opinion, or be for the purposes of actual or anticipated litigation, and
3. It must be considered by the parties to be confidential in nature.

Consequently, all information that a person is asked to provide for the purpose of obtaining a legal opinion and that is communicated in confidence for that purpose is confidential⁷.

What is generally covered

Generally speaking, the following types of information are covered by the professional secrecy privilege:

1. information concerning the nature of the lawyer’s mandate and which denotes a protected confidential relationship;
2. the instructions or mandate given to the lawyer;
3. items provided by the client to the lawyer;
4. all correspondence between the lawyer and the client regarding the advice being sought⁸;
5. any legal opinion⁹;
6. any statement by a witness or an expert¹⁰;
7. the lawyer’s interview notes and comments;
8. legal research notes;
9. communications with an expert;
10. the notes and any report prepared for the client based on communications with an expert¹¹;
11. the drafts of a document that has since become public, as well as the negotiations and any other element involved in its drafting¹².

Statements of fees and timesheets

The amount of fees charged by the lawyer is prima facie presumed to be covered by the professional secrecy privilege, although this presumption is rebuttable¹³.

The presumption has been qualified somewhat by case law in Canada¹⁴, particularly in regards to the payment or non-payment of the fees. If the fee statement contains no details regarding the nature of the services rendered, then the amount of the fees is not covered by professional secrecy. However, if payment or non-payment is relevant to the merits, or if such disclosure could harm the client, then the statement will generally be covered. That having been said, any information on the statement that is covered by the professional secrecy privilege may be redacted in order to protect the interests of the client¹⁵.

Conclusion

Given the importance in our legal system of this fundamental right, caution is warranted, such that in cases of doubt, it is preferable to try and protect the information.

Thus, in the event of any doubt, or where the scope of the file warrants it, it may be advisable to retain independent counsel to analyze the documentation whose disclosure is sought and act as amicus curiae to the Court in that regard. A process can then be sanctioned by the Court and the parties to ensure that the right to professional secrecy is properly protected.