Casual Legal: Check your solicitor-client privilege

DISCLAIMER: This article is meant to provide information to Alberta Municipalities members only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated. This content is not intended for the general public.

By Sabrina Kuckertz
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

Solicitor-client privilege (SCP) exists to protect and facilitate full and frank communications between lawyers and their clients. Without a thorough understanding of all the facts and issues underlying a client’s case – including the good, the bad, and the ugly – lawyers cannot provide accurate, comprehensive legal advice, or effectively advocate in their client’s best interests.

Elements of SCP

Solicitor-client privilege attaches to communications that are:

• Made between a client and lawyer
• In the course of seeking or giving legal advice
• Intended to be confidential by the parties.

“Communications” is interpreted broadly, including conversations in person, over the phone, over voicemail, and in writing. 

Solicitor-client privilege also attaches to communications made between a client and individuals who assist the lawyer professionally, such as their assistants, or other members of the lawyer’s firm. Importantly, SCP can arise as soon as a potential client takes their first steps in engaging a lawyer to provide legal advice, even before a retainer is formalized.

It is the CLIENT'S privilege

Solicitor-client privilege belongs to the client, not the lawyer. In other words, it’s the client’s choice whether to claim SCP over certain communications or not. If so, they must support that claim by establishing the elements above.

A client can also waive their SCP, either explicitly or implicitly. A common example is when the client shares information otherwise subject to SCP with a third party. However, SCP is vigorously guarded, so the party alleging implied waiver must show that the privilege-holder knew of the existence of the privilege, and voluntarily intended to waive it.

Limits to SCP

There are limits to SCP. Casual conversations with someone you know to be a lawyer while standing in line at the grocery store are not necessarily protected by SCP. You must be speaking to the lawyer in their professional capacity, while seeking or receiving legal advice, and intend for those conversations to be confidential.

Further, there is no SCP for communications that are in themselves criminal or are made to obtain legal advice to commit a crime. SCP can also be overridden if the communications reveal a threat to public safety with an imminent risk of death or serious bodily harm, but this is a rarely used exception.

If you have any questions about SCP, please contact our team for more information.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or riskcontrol [at] abmunis.ca (email) to connect with Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.