Best Practices To Adopt In Reaction To The Unauthorized Communication Or Retrieval Of Privileged Information

• Published date: 20 September 2022
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: McCarthy Tétrault LLP
• Author: Mr David Boire-Schwab, Jean Lortie and Iulia Anescu (Summer Student)

TABLE OF CONTENT

1. Introduction and Context

2. Overview of the Principle : Celanese and Subsequent Decisions

3. Rules of Conduct in Common Law Provinces

4. Ethical Implications in Quebec

5. Conclusion and General Advice

1. INTRODUCTION AND CONTEXT

Case law and Codes of conduct across Canada have cemented the principles guiding how parties should behave when privileged documents are communicated inadvertently or retrieved without authorization from the beneficiary of privilege. The increasing exchange of large volumes of information enabled by new technologies can easily lead to this unfortunate situation, which can equally affect materials covered by solicitor-client privilege, settlement negotiations or litigation privilege. Herein, we offer an overview of the rules governing the conduct an attorney should adopt in response to this situation. Without surprise, no use can be made of privileged materials obtained without consent, but it is also clear that these materials cannot even be viewed or held by the receiving or retrieving party and must be returned promptly.

2. OVERVIEW OF PRECEDENTS : CELANESE AND SUBSEQUENT DECISIONS

The Supreme Court of Canada has established that professional secrecy must be as absolute as possible and situations in which it can be set aside without a client's consent are strictly limited¹. These principles are the continuation of a long list of decisions by the Supreme Court that established the protections provided by privilege². Privileged information or documents imply the existence of a beneficiary and rights and prerogatives attached to this privileged status. Whatever privilege a person benefits from, waiver of that privilege is not to be presumed. Thus, in the context of a solicitor-client relationship, confidentiality or secrecy of exchanges are rights that belong exclusively to the client and cannot be waived by actions taken by the lawyer without the client's knowledge or consent. The waiver of privilege must be clear and unequivocal.

In Celanese Canada Inc. v. Murray Demolition Corp.³ (hereafter "Celanese"), the Supreme Court provided clear guidelines relating to the unauthorized communication of privileged materials. Celanese Canada Inc. obtained an Anton Piller⁴ order and had it enforced by independent third parties. In the process, Celanese's lawyers accessed all of the evidence gathered, including privileged documents exchanged between the opposing party and its lawyers. Some of the privileged materials had been identified and placed under seal, but Celanese's lawyers nevertheless requested and obtained access to them, without the knowledge of opposite party, who was only informed after the occurrence. This led to an unsuccessful request for the return of the documents and a motion for a declaration of inability of Celanese's lawyers. Celanese set out the criteria determining whether an attorney in this situation should be declared unfit for purpose. The Supreme Court of Canada also confirmed that although not all confidential information protected by solicitor-client privilege is of equal importance, the simple possession of such information by the opposing party compromises the integrity of the administration of justice and poses a real risk of significant prejudice⁵.

Celanese set forth three clear, minimal, and binding obligations for a lawyer who inadvertently receives privileged materials. First, the lawyer needs to notify the sender, then advise the opposite counsel of the extent to which the documents were examined, and finally promptly return them⁶. Since Celanese, case law has confirmed these important principles. In the 2021 Alberta Court of Appeal decision 0678786 BC Ltd v. Bennett Jones LLP⁷, the court cited the Celanese precedent and reaffirmed the protocol for dealing with privileged documents...