The application of privilege is not an unequivocal procedure, especially in light of jurisdictional considerations. For example, the application of privileges to multinational corporations is even more complex, where the concept of in-house counsel privilege is limited or non-existent in some jurisdictions (and hiring outside counsel, such as a contract firm, may be required to obtain the privilege in other jurisdictions). Confidentiality is essential: when a document loses its confidentiality, it loses its authorization. While it is relatively easy for initial communications to be confidential, too often this confidentiality is lost due to subsequent disclosure to employees or “non-customer” third parties. More on that later. In order to invoke solicitor-client privilege, the lawyer must establish a communication between the lawyer and his client in the course of which legal advice has been obtained or provided and which must be treated confidentially and have actually been treated. While client-to-lawyer and client-to-client communications are protected, privilege only protects the fact that information has been disclosed and does not prevent the disclosure of the underlying facts conveyed in those communications. While it is true that much attention has been paid to the issue of “client” identification, each of the above components presents its own challenges (both practical and legal). While the Court provided a framework for the analysis of privileges with respect to current employees, it expressly refused to consider whether the privilege could extend to former employees. However, Justice Burger, in his concurring opinion, stated that he would extend the privilege to communications where “an employee or former employee, at the direction of management, speaks to counsel about the proposed conduct or conduct in the context of employment.” Alternatively, denial of privilege in respect of designs may be based on renunciation of “subject-matter”. By voluntarily disclosing the final version, the Client waives privilege with respect to the content of the communication, including the underlying details of the information finally published. The drafts and documents used in the preparation of an estate tax return, a draft bankruptcy form, and proposed SEC filings were not considered privileged because of this reasoning.
One of the oldest legal principles in Anglo-American jurisprudence, solicitor-client privilege, is facing a paradigm shift given the rapid development of today`s work culture. While advances in technology allow for faster and more efficient communication and productivity, they represent an increased risk landscape for maintaining solicitor-client privilege. In particular, maintaining confidentiality, a central tenet of this privilege, has become an unintended and unnoticed victim given the speed and complexity of the modern business environment. In the past, society has accepted the need to maintain a balance between privileged discussions in the office, on the one hand, and the social interest in effectively prosecuting corporate crimes, on the other. Advances in technology add a complicating factor that forces the privilege risk landscape to change and evolve with various communication options in mind, including SMS, agile project management platforms, instant messaging, and video communication systems. Universities are regularly asked to assert privileges to protect records from disclosure. Two notable cases involve the University of Calgary (cited above) and the University of Saskatchewan (CanLII, 2018). In these cases, universities processed access requests.
Both fought with their respective DPOs to avoid showing their privileged documents to the Commissioner. In both cases, the DPOs were interested in reviewing the documents to verify whether the privilege invoked had been properly invoked. But if, for example, you ask me for advice on a legal matter such as the dismissal of an employee, all that communication would be protected by solicitor-client privilege. 3.5.3.1 Reports to be prepared by lawyers: Investigation reports prepared by internal investigators without legal counsel are not preferred and these investigators should provide information to the legal team so that they can prepare the report. Solicitor-client privilege protects communications between clients and their lawyers and allows them to communicate fully and openly. For solicitor-client privilege to apply to communications (written or oral), communication (1) must generally be between a client and a lawyer or attorney`s agent; (2) must contain confidential information; (3) must be done without the presence of an unprivileged third party; and (4) for legal advice. Fla. Stat.
§ 90.502. The privilege belongs to the customer, who can waive it expressly, inadvertently or implicitly. Communication is preferred only if the party has sought legal advice and the lawyer has provided legal advice. Because privilege defeats the judicial purpose of bringing to light relevant evidence, it is interpreted narrowly and protects only disclosures necessary to obtain informed legal advice, which may not have been made without privilege. To be protected, communications must also reasonably be considered confidential. This means that the communication cannot be passed on to third parties. However, in the case of a client business, the lawyer`s conversations with an employee can generally be shared with other non-lawyer employees if information is requested at the request of the lawyer or if the lawyer`s legal advice is provided. A party`s claims that communications should be confidential do not do justice to the prosecution; The court will examine the circumstances to establish intent. Given that the common interest doctrine is only an extension of solicitor-client privilege and not an independent privilege, and that solicitor-client privilege logically requires communication between lawyer and client, some courts consider that the common interest doctrine does not apply to communications between two parties unless a lawyer is also involved. Communications shared with financial advisors or made during normal business negotiations have also not been privileged, even when concerns are raised about potential litigation where the parties` ultimate goal is to develop and advance a business strategy.