Solicitor-client privilege is important to consider before sharing emails about employees with others
You receive an email from your company’s lawyer with advice about how to handle a difficult situation with an employee. A few of your colleagues have been assisting you with the situation and this advice would help the group decide how to proceed. However, before you forward the email to your colleagues, have you considered the impact of doing so on solicitor-client privilege?
Solicitor-client privilege is a very important but often misunderstood concept. Communication covered by solicitor-client privilege is protected from disclosure to any person that does not “own” the privilege — including other parties, courts, arbitrators or administrative bodies such as the Labour Relations Board, Human Rights Tribunal or Ministry of Labour. This protection is central to the legal process, because it encourages clients to speak openly with their lawyers without fear their conversations will be made public. So important is solicitor-client privilege, the Supreme Court of Canada has declared it a fundamental civil and legal right.
When solicitor-client privilege applies
So, when does solicitor-client privilege apply? Unlike litigation privilege, which protects documents created for the primary purpose of litigation, solicitor-client privilege protects confidential communications between a lawyer and client. However, solicitor-client privilege does not apply to every such communication. For a communication to be protected by solicitor-client privilege, the following four requirements must be satisfied:
•The communication must be between a lawyer and his client.
•The communication must be connected to obtaining legal advice, as opposed to business or non-legal advice.
•The communication must be confidential.
•There must have been no waiver of confidentiality.
Let’s return to the email scenario introduced above. The first question to ask is whether the communication is between a lawyer and client. Merely copying a lawyer on the communication will not be enough to bring that communication within the purview of solicitor-client privilege. The exception is when you and your lawyer have agreed the lawyer will be copied on all relevant communication for the purpose of receiving legal advice during the course of a mandate.
The second question is whether the communication pertains to obtaining or providing legal advice. This includes information provided by the client to the lawyer. Communications unrelated to legal advice, such as business advice, are generally not protected by solicitor-client privilege.
The third issue to consider is whether the communication is confidential. To satisfy this requirement, the parties need to demonstrate an intention to maintain confidentiality. This intention is potentially undermined if numerous people are forwarded or copied on a communication.
The exception to the third issue is if the other individuals can be considered reasonably necessary to protect the client’s interests and understand they are expected to maintain confidentiality. For example, an employee’s direct supervisor, human resources manager and company president could all be involved in making a termination decision. Their inclusion in a communication is therefore reasonably necessary to protect the employer’s interests. The same might apply to the inclusion of an accountant or tax adviser.
The final issue to consider is whether solicitor-client privilege has been waived by the client. Waiver may occur voluntarily or involuntarily. Voluntary waiver may occur if, for example, a party relies on all or part of a privileged communication as a component of a claim or defence. In that case, the party has willingly put the privileged communication into the public domain and, as such, is deemed to have waived the privilege.
Involuntary waiver may occur where an electronic communication is accidentally sent to an individual who ought not to have received that correspondence. In that case, an adjudicator will consider, on a case-by-case basis, if the accidental disclosure should render the communication no longer privileged. Factors that will affect the adjudicator’s decision include: How the information was disclosed; whether the error is excusable; when the disclosure was discovered; whether an immediate attempt was made to retrieve the information; the number and nature of third parties who became aware of the communication; whether preserving privilege would create actual or perceived unfairness to the opposing party; and the actual or perceived impact of preserving privilege on the court, tribunal or arbitration.
Tips for employers
Given the importance of solicitor-client privilege, and the growing prevalence of electronic correspondence, the following recommendations may help in maintaining solicitor-client privilege over appropriate electronic exchanges:
•Limit the number of recipients. Send to, copy or forward electronic correspondence only to individuals who are reasonably necessary to advance the employer’s interests.
•Ensure recipients of electronic correspondence containing privileged communication clearly understand the information is and must remain confidential. State this clearly at the top of the communication — for example “Privileged and Confidential – Solicitor and Client Communication.” This statement will not automatically render the contents of the communication privileged — if the other criteria are not present — but it may provide evidence of the party’s intentions to keep the contents confidential.
•Ensure recipients understand and appreciate the risk associated with forwarding the communication to others not necessary to protect the employer’s interests or intended to be a part of the privileged communication. State this clearly on the communication together with a directive the communication must not be forwarded.
•Before hitting the ‘send’ button, double-check the recipients are the correct individuals.
