Before the digital age, lawyers gave advice to clients and that advice - and related documents - stayed in filing cabinets and locked drawers. The advent of computers, laptops and cellphones means that advice is now vulnerable to state intrusion.
Solicitor Client Privilege (“SCP”) is at risk of being severely compromised because of the ease of storage, access and transfer of information. Lawyers must remember that SCP is not our privilege to waive – that can only be done after informed consent and should only be done when it is a clear benefit to the client, determined by the client after independent legal advice.
SCP is a fundamental right central to the proper administration of justice. Communications that fall under SCP are those that are: 1) between a lawyer and a client; 2) for the purposes of seeking or giving legal advice; and 3) be intended to be confidential between the parties. While not all communications may engage solicitor-client privilege, communications with clients should be treated as though they do. When a client is travelling across international borders or under investigation, they need to be informed of the consequences of waiving SCP. Lawyers will face a significant challenge in providing sound advice to clients about maintaining privilege.
As recently as January 2019, Brown, J., of the BC Supreme Court decided a matter where a client was asserting SCP over electronic data and documents stored electronically and seized as part of an Income Tax Act investigation (Solicitor Client Privilege of Things Seized, (Re), 2019 BCSC 91). After the warrants were executed, the search was halted for a list to be provided of the SCP claimed documents. The Crown brought this application two years later to allow the CRA to process the documents seized.
The parties could not agree as to how the searches should be carried out, or by whom. The Crown argued the search should be done by the CRA’s Forensic Team, and the Respondents argued that process did not do enough to isolate the privileged material. The Respondent argued that the process identified in Lavalee, Rackel and Heintz v Canada 2002 SCC 61, the appointing of an independent referee – a lawyer regulated by the Law Society – should be engaged to identify solicitor client related materials, isolate them, and ensure that documents without SCP would be forwarded to Crown. In this case, however, Brown, J. found that because the Respondent client’s interests were different than the search of a lawyer’s office, that a referee did not need to be appointed, but that an independent technician with expertise in forensic computing would allow for a “secure, efficient, and reliable separation of solicitor client privileged materials.” This solution clearly balanced the needs of preserving SCP while providing for an efficient search, but only time will tell if it is a viable long-term solution in keeping with the fundamental right inherent in SCP.
Maintaining privilege will, in future, be as important to criminal, quasi-criminal and regulatory investigations as maintaining the right to silence in the face of police questioning. Because so many of our communications are made via email, text, social media and messaging apps – and because it has been held in some jurisdictions that there is a lesser privacy interest in a password or fingerprint unlock to a cellphone – there will be a need to have the client inform the state agent that SCP may be engaged or at play. The Courts will find themselves frequently addressing a process for how to deal with SCP materials, and whether it may be admissible, either for the truth of its contents, as a business record, or as a reason the client did, or did not, take a particular action.