The Solicitor-Client Privilege Regarding Legal Fees: the Decision in Kalogerakis v. Commission scolaire des Patriotes
In its decision in Kalogerakis v. Commission scolaire des Patriotes1 rendered on May 21, 2014, the Court of Québec dealt with the appeal of two decisions from the Québec’s Access to Information Commission2 (the “Commission”) dismissing requests for disclosure of the amount of professional fees billed by lawyers retained by public entities, on the ground that the information was protected by solicitor-client privilege.
In the first case, the plaintiff requested the amount of legal fees paid by various school boards in defending a class action brought by dyslexic pupils and their parents. Despite the fact that a single lawyer represented all the school boards in the matter and payment of the lawyer’s account for services rendered was shared by the school boards, such information was known to only a limited number of persons within the school boards and was not expressly disclosed in their financial statements as it was disseminated under various headings. A table had been prepared to keep track of the payments, which showed the amount of the fees paid but included no other details about the nature of the services rendered.
In the other case, the plaintiff requested to know the amount of legal fees paid by a city in connection with a civil liability suit involving the code of ethics of its police force. It was not possible to segregate the law firm’s accounts that had been paid in connection with this particular case from the other cases for the city. However, the legal fees requested were specified on purchase orders as well as on cheques issued by the city’s treasurer in payment of them.
The decisions of the Commission
In both cases, the Commission ruled that the lawyers’ accounts for services rendered were part of the solicitor-client relationship and were thus covered by solicitor-client privilege. The Commission did acknowledge however that the case law is more qualified where the information sought regarding statements of account for legal fees does not disclose any details about the services rendered and indicates only the amount of the fees.
With respect to the table prepared by the school boards indicating the amounts of legal fees paid by the various boards and other related documents, the Commission found no evidence to rebut the presumption that the amount of legal fees was covered by solicitor-client privilege or indicating that the privilege had been waived. It consequently upheld the boards’ decision not to disclose the information.
In the case involving the city, the Commission concluded that the entire statement of account for legal fees was covered by solicitor-client privilege and that there was no justification for disclosing any particular component of it, such as the amount of the fees. The Commission added that the privilege belonged to the party that had retained the lawyer and that the privilege had not been waived in respect of the amount of legal fees.
The analysis of the Court of Québec
In deciding on the appeal of these two decisions by the Commission, the Court of Québec considered the issue of whether the total amounts of legal fees paid by the school boards and the city were covered by solicitor-client privilege and if not, whether that information is nevertheless protected by the litigation privilege. After a thorough and detailed analysis of the case law, the Court found that lawyers’ accounts for professional services are not automatically covered by solicitor-client privilege, particularly where the applicant is only seeking to learn whether or not the account was paid or the amount of fees paid.
The Court explained that each situation must be considered on its own facts, and in order to determine whether the information is covered by solicitor-client privilege, the trial judge must first analyze the specific legal context in which the information is being requested. It will then be necessary to determine if the requested information discloses the nature of the services rendered or the advice and opinions given, or if the information jeopardizes the confidentiality of the professional relationship between the lawyer and the client. In civil law as in criminal law, it must be determined whether the information is privileged, and if so whether there is evidence of a recognized exception to the privilege.
According to the Court, where the lawyer’s mandate is limited and not complex, the party claiming that the information is privileged must demonstrate that it is indeed privileged. However, simple and summary evidence will suffice to establish confidentiality and ensure immunity from disclosure. Conversely, if the mandate is complex and performed over a lengthy period, there is a rebuttable presumption that all of the communications between the lawyer and the client, as well as other items of information in connection with their relationship, are privileged. In such cases, the party seeking to obtain the information has the burden of rebutting the presumption.
The Court concluded its analysis by stating that an account for fees for legal services is prima facie covered by solicitor-client privilege because it generally contains a description of the tasks performed, the services rendered and often the advice provided. However, the same reasoning does not apply where the document or information sought deals only with the amount of the legal fees, and no further details.
The decision of the Court of Québec
Applying the correctness standard of review, the Court of Québec decided that the Commission erred in automatically including the amounts of legal fees in question within the bounds of the solicitor-client privilege. Moreover, according to the Court, the Commission should not have placed the burden on the appellant to prove that the information in question was not privileged.
Thus, in the case involving the city, the Court ordered the disclosure of the purchase orders and the cheques issued in payment of the legal fees, as they indicated only the amount of the fees, without any details regarding the nature of the services rendered.
As for the case involving the school boards, the Court ordered the disclosure of the amounts indicated in the table that had been prepared by the boards, subject to the Commission’s eventual decision on the issue of litigation privilege, since in light of the Court’s decision that the information sought in that case was not in and of itself privileged, it was now relevant to determine whether the amount of the legal fees was nevertheless covered by the litigation privilege. Since the Court considered that it was up to the Commission to decide that question, it ordered the file to be sent back to the Commission.
1 2014 QCCQ 4167
2 Commission d’accès à l’information