Solicitor Client Privilege in the Estate Context - Clark Wilson LLP

Introduction• Solicitor/Client Privilege:• one of the very cornerstones of our legal system• dates back to the 16 th century• prohibits the disclosure to others of thedocumentary and oral information passingbetween a lawyer and his or her client1

Outline of Presentation1. What is solicitor/client privilege?2. Who has the authority to waive thesolicitor/client privilege?3. What is the “wills exception”?4. How does solicitor/client privilege differ from thelawyer’s ethical duty of confidentiality?2

Who Has Authority to Waive Solicitor/ClientPrivilege?• the privilege belongs to the client• it is the solicitor’s duty to claim the privilege onbehalf of the client when someone other than theclient requests the file• the privilege survives the death of a client andenures to his or her next of kin, heirs, orsuccessors in title• the personal representative may waive privilegeover the deceased’s file4

Express and Implied Waiver of Privilege• express waivers may be made for practicalreasons in litigation• implied waivers may arise inadvertently through apartial disclosure• whether or not a partial disclosure amounts to awaiver will turn on the facts and on issues offairness5

What is The Wills Exception?Starting Point:• the last will itself is not privileged after death• the communications leading to the drafting andexecution of the will are privileged, both beforeand after death6

What is The Wills Exception? (cont’d)• where a testator’s “true intention” is at issue,communications that are otherwise privilegedmay be disclosed• in both the interest of the client and the interestof justice that the relevant evidence of thesolicitor be admitted• Geffen v. Goodman Estate 1991 SCC expandedto include inter vivos trusts containing life andremainder interests7

What is The Wills Exception? (cont’d)Cases Subsequent to Geffen• Fawcett Estate v. Steiner 1998 BCSC• Wood v. Wilkie 2012 BCSC• BUT SEE Kreeft v. Kreeft 2006 BCSC8

Solicitor/Client Privilege in the Context ofCommittees• not yet wholly settled• Canada Trust Co. v. Ringrose 2009• Re Palamarek 2010 BCSC• ethical perspective: duty of confidentiality theLaw Society Ethics Committee memo atAppendix A9

Solicitor/Client Privilege in the Context of aBankruptcy• Re Bre-X Minerals Ltd., 1998 CarswellAlta 1061• trustee in bankruptcy applied for an order that itcould waive Bre-X’s solicitor/client privilege• sought to rely on case law permitting theexecutor of an estate to waive privilege• the court rejected the argument10

How Does Solicitor/Client Privilege Differfrom a Lawyer’s Duty of Confidentiality?• in addition to the solicitor/client privilege• bound by his or her own professional and ethicalduty to maintain the client’s confidence• Professional Conduct Handbook Chapter 511

Duty of ConfidentialityChapter 5.1 reads:1. A lawyer shall hold in strict confidence allinformation concerning the business and affairsof the client acquired in the course of theprofessional relationship, regardless of thenature or sources of the information or of the factthat others may share the knowledge, and shallnot divulge any such information unlessdisclosure is expressly or impliedly authorized bythe client, or is required by law or by a court.12

Duty of Confidentiality (cont’d)• survives the end of the legal relationship• some limited exceptions, including disclosure toprevent death or serious bodily harm to anyperson• when required to disclose, ensure only theminimum information is disclosed13

Duty of Confidentiality (cont’d)The Professional Conduct Handbook is scheduledto be replaced by the Code of Professional Conductfor BC on January 1, 2013.14

Conclusion• communications between ourselves and ourclients subject to both solicitor/client privilegeand duty of confidentiality• critical that we maintain our clients’ confidences• critical we assert the privilege when called uponto do so• generally, it is proper for the lawyer to requirethe requesting party to obtain a court order15

THANK YOUThese materials are necessarily of a generalnature and do not take into considerationany specific matter, client or fact pattern.Please direct inquiries or comments to:Amy Mortimore, Clark Wilson LLPaam@cwilson.com | 604.643.3177www.cwilson.com