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:
- 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;
- 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
- 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:
- information concerning the nature of the lawyer’s mandate and which denotes a protected confidential relationship;
- the instructions or mandate given to the lawyer;
- items provided by the client to the lawyer;
- all correspondence between the lawyer and the client regarding the advice being sought8;
- any legal opinion9;
- any statement by a witness or an expert10;
- the lawyer’s interview notes and comments;
- legal research notes;
- communications with an expert;
- the notes and any report prepared for the client based on communications with an expert11;
- 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.
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.
1 See in this regard Article 2858 C.C.Q., which allows the Court, even of its own motion, to raise the issue of professional secrecy.
2 Canadian Charter of Rights and Freedoms, U.K. 1982, c.11, s. 7; Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s.9; Code of Ethics of Advocates, R.R.Q., c. B-1, r. 3, ss. 3.06.01.01 to 3.06.01.05, 3.06.01 and 3.06.03; Act respecting the Barreau du Québec, R.S.Q., c. B-1, s.131; Chambre des notaires du Québec v. Canada (Procureur général), 2010 QCCS 4215, par. 49 (leave to appeal filed).
3 Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED),  1 S.C.R. 456, par. 27.
4 Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED),  1 S.C.R. 456.
5 R. v. McClure,  1 S.C.R. 445, par. 3; Lavallée, Rackel & Heintz v. Canada (Attorney General),  3 S.C.R. 209, pars. 24 and 39.
6 Cinar Corporation v. Weinberg, J.E. 2007-1912 (C.S.), par. 8; Robinson v. Weinberg, 2005 CanLII 35800 (QC SC), pars. 27 and 28.
7 Descôteaux v. Mierzwinski,  1 S.C.R. 860 at pp. 892-893.
8 Descôteaux v. Mierzwinski,  1 S.C.R. 860; Procureur général du Québec v. Dorion, J.E. 92-1284 (C.A.), EYB 1992-55948; Wailer v. Canada,  F.C. 617; Vasire Capital Inc. v. Lyster Management Ltd.,  R.D.J. 672 (C.A.), EYB 1988-62940; Gestion Lib Inc. v. Guay,  S.C. 911.
9 Fédération des médecins spécialistes du Québec v. Association des médecins hématologistes-oncologistes du Québec,  R.J.Q. 2067 (C.A.), EYB 1988-62928; Repentigny (Ville de) v. Carignan, REJB 2002-36020 (C.A.).
10 Ville de Montréal v. Cordia Ltd., REJB 2003-48046 (C.A.).
11 Raymond Doray, “Le secret professionnel de l’avocat et ses devoirs de confidentialité et de discrétion“ in Éthique, déontologie et pratique professionnelle, Collection de droit, 2005-2006, volume 1, École du Barreau du Québec, Cowansville, Yvon Blais, pp. 131-132.
12 Chambre des notaires du Québec v. Canada (Procureur général), 2010 QCCS 4215, par. 38 (leave to appeal filed) (by analogy).
13 Chambre des notaires du Québec v. Canada (Procureur général), 2010 QCCS 4215, par. 54 (leave to appeal filed); Québec (Commission des services juridiques) v. Gagnier, REJB 2004-60463 (C.Q.), par. 44; Maranda v. Richer,  3 S.C.R. 193, par. 33.
14 Chambre des notaires du Québec v. Canada (Procureur général), 2010 QCCS 4215, par. 54 (leave to appeal filed); Kruger Inc. v. Kruco Inc.,  R.J.Q. 2323 (C.A.).
15 Droit de la famille 2436, (1996) J.E. 96-1260 (S.C.), pp. 5-6.