Solicitor-Client Privilege: Claim For Breach Denied And Argument To Preserve Upheld

The law of solicitor-client privilege occupies a lot of shelf space in the professions and occupations section of the library. It is a topic that has received much judicial consideration, and over time has moved from a rule of evidence to a quasi-constitutional substantive right.

The importance of solicitor-client privilege cannot be underestimated. The privilege permits a client to fully disclose to their lawyer everything they know about a particular issue, without fear that their private and confidential communications will be disclosed to a third party or the public.

In two recent cases, lawyers at Gardiner Roberts LLP were involved in matters involving solicitor-client privilege. We were successful in both cases.

In the first case, we protected a lawyer against a claim for breach of solicitor-client privilege.

In the second case, we protected a lawyer from having to disclose to a litigant the privileged contents of one his files.

Claim for breach of privilege denied

Kazen v. Whitten & Lublin Professional Corp.1,

involved a claim whereby the plaintiff lawyer, SK, sought damages against the defendant law firm and their lawyers for disclosing in a wrongful dismissal action against SK's law firm alleged solicitor-client privileged information belonging to SK.

The wrongful dismissal action had been brought by a former employee of SK's law firm. The former employee in that case was represented by the defendant law firm.

However many years before the wrongful dismissal action, SK had consulted with the defendant law firm in connection with another matter. This fact had been put into evidence on a motion in the wrongful dismissal action.

That motion sought the removal of SK as lawyer of record for his own law firm on the grounds that he was too close to the case to properly represent his firm and that he would be a witness at trial.

SK complained about the disclosure of his solicitor-client privileged information that had been included in the affidavit of the former employee even though SK referenced the solicitor- client information in responding material.

SK also complained that the defendant law firm and their lawyers could not represent the former employee because they were in a conflict of interest.

A reply affidavit was then filed on the motion by the former employee's lawyer. This affidavit further briefly referenced the basic relationship that existed between SK and the defendant law firm and its lawyers. The affidavit explained that...