Solicitor-client privilege

Solicitor-client privilege, also called legal advice privilege, protects confidential communications between a lawyer and a client made for the purpose of seeking or giving legal advice. It allows the client to refuse to disclose those communications unless the privilege is waived or another legal exception applies, as set out in Treasury Board Secretariat guidance and Canada Revenue Agency guidance on privilege claims.

The privilege is a common-law protection. It applies to government institutions in the same way it protects private-sector communications with legal professionals. It is separate from litigation privilege, which generally covers records created for existing or anticipated litigation. Federal buyers meet the concept most often when they prepare solicitations, handle access to information requests and contract for legal services.

The three elements of solicitor-client privilege

Canadian government guidance identifies three core elements. A communication is protected when it meets all of them:

• It is a communication between a lawyer and a client.
• It is made for the purpose of seeking or giving legal advice.
• It is intended to remain confidential.

The Department of National Defence Defence Counsel Services Manual describes the privilege as both an evidentiary rule and a substantive right to confidentiality. It applies to confidential oral or written communications that directly concern seeking, formulating or giving legal advice or assistance, including directly related legal working papers.

Who holds the privilege and how it is waived

The privilege belongs to the client, not the lawyer, and the client generally controls any waiver. Voluntary disclosure to a third party can result in waiver, according to the Canada Revenue Agency. The Agency also states that communications and client information held by lawyers acting as legal advisers are presumed privileged, and that its auditors should not request them, as described in its guidance on requesting information from lawyers and notaries.

What the privilege does not cover

Solicitor-client privilege does not extend to political, administrative, managerial or general policy advice. A communication with a lawyer is not protected simply because a lawyer was involved. CanadaBuys tells public-sector buyers that a communication stays confidential when it is with a practising lawyer, concerns legal advice rather than policy or non-legal advice, and is intended to be confidential.

How the privilege applies in federal procurement

The CanadaBuys guidance on engaging subject-matter experts lists solicitor-client privilege under Legal Services. It warns that disclosing information without legal counsel's recommendation can unintentionally waive privilege and make the information accessible under the Access to Information Act. It directs users to consult Legal Services on privilege questions.

Section 23 of the Access to Information Act allows the head of a government institution to refuse to release records containing information subject to solicitor-client privilege. Treasury Board's proactive disclosure materials on open.canada.ca recognize that some aspects of legal-services contracts may be protected by solicitor-client privilege or litigation privilege. Contract disclosure requirements still apply to the relevant non-privileged information.

What solicitor-client privilege means for a supplier

Federal guidance names no supplier form, certification or bid requirement called solicitor-client privilege. The practical lesson for a bid team is narrower. Do not assume that communications exchanged with a government lawyer are privileged merely because they concern a procurement. The communication must meet the legal-advice and confidentiality requirements, and disclosure to third parties can waive protection.

Because the privilege belongs to the client, a supplier should treat any legal advice a government institution shares with it as that institution's to control. Direct privilege questions to the contracting authority, which in turn consults its Legal Services.