Whose Privilege, Who’s Privileged? A Look at Lawyer-Client Privilege

The Canadian judiciary has described lawyer-client privilege as the “highest privilege recognized by the courts.”¹ While confidentiality is central to many professionals’ relationships with their clients, communication shared between a lawyer and his or her client receives far greater protection than that shared between physician and patient or psychologist and patient.

First, lawyer-client privilege is considered a “class” privilege by the rules of evidence.² This means there is a presumption that disclosure of information shared in that relationship cannot be compelled by court processes. Confidential information shared between a physician-patient and psychologist-patient, by contrast, is not protected by a class privilege.³ Rather, such information may be deemed privileged by a court on a “case-by-case” basis, but only if the facts satisfy the “Wigmore test.”⁴ The test is stringent and case-by-case privilege is only found in rare cases.⁵

Second, the concept of lawyer-client privilege has expanded outside the rules of evidence into a substantive rule of law that protects lawyer-client confidences whenever a “legitimate exercise of a right would interfere” with it.⁶ In other words, courts have held that lawyer-client privilege is “a right that can be asserted even in the absence of legal proceedings.”⁷ Confidential information shared between a physician-patient and psychologist-patient receives no comparable legal protection.

One cannot help but wonder why courts are far more inclined to protect confidential information shared with lawyers than with other professionals. The answer lies in the “necessity justification” of lawyer-client privilege, first articulated by Lord Brougham, a prominent lawyer and eventual Lord Chancellor of Great Britain.⁸ In 1876, he noted the following:

[B]y reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers…[and this requires he] be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation.⁹

This passage, which has been repeatedly and recently cited with approval by the Supreme Court of Canada,¹⁰ exhibits the utilitarian argument for lawyer-client privilege that has persisted for over 150 years in common law jurisdictions:¹¹ lawyer-client privilege is necessary and must be protected because it promotes “full and frank disclosure” between a client and a lawyer. Such disclosure is necessary to a properly functioning legal system, which in turn is necessary to society. Other confidential communication such as that between a doctor and his or her patient, the argument continues, does not “resonate with the same concerns.”¹²

This justification is so ubiquitous that its assumptions are rarely questioned.¹³ However, Professor Adam Dodek has deviated from this tendency.¹⁴ He characterizes the necessity justification as a “monolithic, sweeping doctrine that does not correspond to the realities of our legal system”¹⁵ and asserts that its two fundamental assumptions “lack both empirical and normative support.”¹⁶ First, according to Dodek, there is no empirical basis to support the argument that clients would not make “full and frank disclosure” of all relevant facts to their lawyers in the absence of lawyer-client privilege. No studies on this point have been conducted in Canada and the few that have occurred in the United States either do not support the argument or are inconclusive.¹⁷ Second, the notion that the legal system only functions properly if lawyers have access to all relevant facts is equally dubious. Dodek notes that that competent lawyers “frequently proceed without full knowledge of the facts.” For example, “many criminal lawyers simply do not want to know all the relevant facts because it would put them under ethical constraints in defending their clients.”¹⁸ One could not reasonably argue that this reduces their competency as advocates.

The assumptions that underlie the necessity justification are evidently suspect. Accordingly, one continues to wonder why courts are so protective of lawyer-client privilege. The “protectionist critique” of lawyer-client privilege provides an interesting answer. It contends that lawyer-client privilege primarily serves the needs of lawyers, not those of clients or the general public—it promotes lawyer autonomy and protects the profession’s privileged position in society.¹⁹ The jurisprudence that has granted communication with lawyers status above confidential information shared with other professionals is not an example of utilitarianism. It is instead an example of lawyers, and judges who are appointed lawyers, consciously and unconsciously creating and perpetuating a legal framework that venerates and benefits their profession. While there are many convincing arguments supporting the “protectionist critique” that are beyond the scope of this comment,²⁰ I will put forward one novel argument.

Lawyer-client privilege predates Lord Brougham’s famed enunciation of the “necessity” justification. Modern conceptualizations of lawyer-client privilege first emerged in Britain in the middle of the sixteenth century,²¹ at which point the privilege belonged to the lawyer, not the client.²² It was “a consideration for the oath and honor of the attorney rather than for the apprehensions of his client.”²³ Client secrets were considered worthy of protection not because courts respected the clients’ interests, but rather because courts respected “the lawyer’s honour as a gentleman.”²⁴

British society became increasingly populist and democratic in the nineteenth century.²⁵ Perhaps the justification of the elevated status of lawyer-client privilege changed as the notion that special privileges ought to be afforded to those with status became increasingly unpalatable, but the privilege itself remained fundamentally unchanged. Thus, the explicitly elitist sixteenth-century justification of privilege is still operative in the concept it birthed today. Indeed, the sixteenth-century justification is remarkably similar to the premises behind the protectionist critique of the modern concept: both assert that lawyer-client privilege is a reflection of the elevated role lawyers have in society, and both assert that it functions primarily to benefit the legal profession. The historical pedigree of lawyer-client privilege therefore provides support for the protectionist critique, which would cheekily suggest that confidential information shared with physicians and psychologists does not receive the same legal protection for one reason: they are not lawyers, who are special.

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^* BA (University of Regina), JD (University of Saskatchewan).

¹ Smith v Jones, [1999] 1 SCR 455 at para 44, 169 DLR (4th) 385 [Smith].

² R v Gruenke, [1991] 3 SCR 263 at 286, [1991] 6 WWR 673.

³ R v McClure, 2001 SCC 14 at para 29, [2001] 1 SCR 445 [McClure].

⁴ Ibid at para 29. The Wigmore test, as applied by the Supreme Court in M.(A.) v. Ryan ([1997] 1 SCR 157 at 173-75, 143 DLR (4th) 1), includes the following four criteria:

1. 1. The communication must originate in confidence that it will not be disclosed.
   2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
   3. The relation must be one which, in the opinion of the community, ought to be sedulously fostered.
   4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

⁵ David M Paciocco & Lee Stuesser, The Law of Evidence, 6th ed (Toronto: Irwin Law, 2011) at 256.

⁶ Descôteaux v Mierzwinski, [1982] 1 SCR 860 at 875, 141 DLR (3d) 590.

⁷ Adam M Dodek, Solicitor-Client Privilege (Markham: LexisNexis Canada, 2014) at 16.

⁸ Adam M Dodek, “Reconceiving Solicitor-Client Privilege” (2010) 35:2 Queen’s LJ 493 at 506 [Dodek, “Reconceiving”].

⁹ Anderson v Bank of British Columbia (1876), 2 Ch D 644 at 649 (CA).

¹⁰ See e.g. Smith, supra note 1 at para 45.

¹¹ The Supreme Court of Canada has said:

[t]he importance of solicitor-client privilege to both the legal system and society as a whole assists in determining whether and in what circumstances the privilege should yield to an individual's right to make full answer and defence… Free and candid communication between the lawyer and client protects the legal rights of the citizen. It is essential for the lawyer to know all of the facts of the client's position. The existence of a fundamental right to privilege between the two encourages disclosure within the confines of the relationship. The danger in eroding solicitor-client privilege is the potential to stifle communication between the lawyer and client. The need to protect the privilege determines its immunity to attack.

McClure, supra note 3 at para 33.

¹² Ibid at para 31.

¹³ Dodek, “Reconceiving”, supra note 8 at 495.

¹⁴ Ibid.

¹⁵ Ibid at 496.

¹⁶ Ibid at 508.

¹⁷ Ibid at 509.

¹⁸ Ibid at 512.

¹⁹ Ibid at 514, 516.

²⁰ See e.g. ibid at 514-18.

²¹ Hock Lai Ho, “History and Judicial Theories of Legal Professional Privilege” (1995) 2 Sing JLS 558 at 560.

²² Anonymous, “The Attorney-Client Privilege: Fixed Rules, Balancing, and Constitutional Entitlement” (1977) 91:2 Harv L Rev 464 at 465.

²³ John Henry Wigmore, Evidence in Trials at Common Law, ed by John T McNaughton, vol 8 (Boston: Little, Brown & Co., 1961) at 543 [emphasis omitted].

²⁴ Lai Ho, supra note 21 at 561.

²⁵ See e.g. The Representation of the People Act 1867 (UK), 30 & 31 Vict c 102 (which greatly expanded enfranchisement).