Lawyer-client confidentiality: Is what I tell my lawyer confidential?

We’ve all seen the T.V. shows where the lawyer asks their friend for $1 to ‘invoke’ lawyer-client privilege… But is that actually how lawyer-client privilege works?

The simple answer is no. Lawyer-client privilege is not a switch that can be flicked by simply giving a lawyer a dollar.

What is lawyer-client privilege?

Lawyer-client privilege applies to communications between you and your lawyer where your lawyer gives you legal advice, but there are exceptions. The easiest way of thinking about it is, when you speak to a lawyer about your case, your conversations are confidential and therefore privileged. Once you invoke privilege, your lawyer cannot talk to anyone about your conversations outside of their law firm without your permission. This privilege continues even once the relationship between you and your lawyer is over.

What is the purpose of the lawyer-client relationship?

The fundamental purpose behind this relationship is your ability to speak freely. For you to do so, it is beneficial that conversations between you and your lawyer remain private. This can ensure two things:

1. You can speak freely without holding anything back
2. Your lawyer can fully understand your situation and offer you the best possible legal advice

In fact, lawyer-client privilege is so fundamental to the legal system that the Supreme Court of Canada said in R. v. McClure, [2001] 1 S.C.R. 445, 2001 S.C.C. 14 that it must be “as close to absolute as possible to ensure public confidence and retain relevance.”

The requirements for lawyer-client privilege

There are three main requirements for a conversation between you and your lawyer to be privileged.

First, and probably most obvious, the communication must be between a lawyer and their client. Effectively, this means that the lawyer must be acting in a professional capacity at the time of the communication. Asking your lawyer friend a question at a family barbecue probably isn’t privileged.

Second, you must be seeking legal advice. If a lawyer provides both legal and business advice, the portion of the conversation where the lawyer gave business advice may not be privileged.

Third, you must make the communication in confidence. If your communication with the lawyer was meant to be private, the privilege applies. You do not need to explicitly state that you intend for it to be private in your meeting.

Note: Lawyer-client privilege can also extend to conversations between your lawyer and a third party. This may happen where the third party is an ‘agent of the lawyer or client’. This often happens when your lawyer needs to retain an expert to interpret your information for technical portions of your case (i.e., medical files).

What are the exceptions to lawyer-client privilege?

While lawyer-client privilege is a crucial concept for prospective clients to understand, so are the exceptions to this privilege.

The first is waiver. Remember, lawyer-client privilege belongs to you as the client and is yours to waive. As such, your lawyer (or potential lawyer) cannot talk to anyone outside of the firm without your permission. A client may waive privilege either expressly or through their informed consent. You may also waive your rights to the privilege if you voluntarily discuss your confidential information with a third party.

The second exception involves physical objects. While waiver protects conversations between you and a lawyer, it does not protect physical objects. Remember, lawyers are not your personal safety deposit box. You cannot simply give your lawyer something and claim privilege. Further, the privilege may not extend to documents that pre-exist the lawyer-client relationship.

The third is the criminal action exception. Privilege will not protect criminal conversations or those where you try to get legal advice to help you commit a crime. For example, you cannot get legal advice to help you rob a bank. However, the privilege may extend to the disclosure of crimes that you have already committed.

Fourth is the public safety exception. Here, a lawyer may break privilege if a threat to public safety outweighs the need to preserve privilege. To break privilege under this exception, the lawyer must consider three questions:

1. Is there a clear risk to an identifiable person or group of people?
2. Is there a risk of serious bodily harm or death?
3. Is the threat of danger imminent/immediate?

If the answer to one of these questions is yes, your lawyer can likely break privilege.