Solicitor Client Privilege and the Future Crimes Exception in Family Law

The McDermott case McDermott v. McDermott, 2013 BCSC 534 (CanLII) provides an example where the court in a family law case will order production of communications between lawyer and client despite a claim of solicitor-client privilege.

Solicitor-client privilege is a privilege the court recognizes that communications between solicitor and client for legal purposes, and intended to be confidential, cannot be forced to be disclosed.  The privilege belongs to the client, and allows the client to safely disclose all the facts, no matter how bad, to their lawyer so the lawyer can provide legal advice.

Lawyers cannot provide complete legal advice unless they have complete facts.  If the client fears that they tell their lawyer is not confidential and can be ordered disclosed then the client will likely be reluctant to tell the lawyer any ‘bad’ facts although required by the lawyer to give legal advice.  To help ensure people get good legal advice, communications between solicitor and client are generally confidential because of the privilege.

However, the privilege is not absolute.  There are exceptions to the privilege.  For example, communications that are to facilitate the commission of a crime or fraud are not protected by solicitor-client privilege.  This exception to solicitor-client privilege is known as the “future crimes exception”.  Privilege never attaches to these types of communications.

The “future crimes exception” is broad and includes wrongful acts that are not necessarily criminal.  It applies to negligence and other unlawful acts including abuse of the court process.  Therefore, communications between a lawyer and client who deliberately uses a lawyer to facilitate any unlawful conduct does not attract solicitor-client privilege, and can be ordered disclosed.

To make out the “future crimes exception” three elements must be met:

  1. The communication must refer to future conduct;
  • the client must be seeking to do something which the client knows or should know is unlawful; and
  • the wrongful conduct being contemplated must be clearly wrong.

It does not matter whether the lawyer is aware of the unlawful intent of the client or not.  The key consideration is the intention and state of mind of the client at the time the advice was obtained.

The burden of proof of establishing solicitor-privilege is on the person who claims the privilege.  Once privilege is established then it is on the party seeking to overcome the privilege to establish that the communications should be disclosed.

Therefore, in order to make a “future crimes exception” claim, the applicant must first make out a prima facie case.  There must be some clear and convincing evidence to give ‘colour’ to the allegation that the client had communicated with their lawyer with the intention of committing an unlawful act, and that the client knew or ought to have known that the intended conduct was unlawful.  Once a prima facie case is established, the court then reviews the documents in question to determine whether the exception or privilege applies.

In McDermott, the parents lived in different provinces and were involved in an ongoing guardianship and access dispute lasting years.  Parental alienation was suspected.  The father inadvertently discovered emails between the mother and her sister about a plan developed by the mother with her lawyer to delay trial.  The plan was to purposely lose an interim application and then appeal the ruling although knowing the appeal would fail.  The father requested access to all other emails and documents regarding the mother’s plan.  The mother claimed solicitor-client privilege.

In this case the court found the mother was trying to abuse the court process by deceiving the court to delay justice.  Abuse of court process is an unlawful act, and the court decided the “future crimes exception” to solicitor-client privilege applied.  Further, the court found the father had presented more than just a prima facie case, and deemed it unnecessary to review the questionable emails before making its decision.  The court ordered the mother to produce all documents including emails, notes, and memoranda relating to the mother’s plan.

The future crimes exception is only one exception to solicitor client privilege.  Other exceptions include disclosing information to prevent imminent harm to a person, or when innocence is at stake, for example, to help free the wrongfully convicted.  Further, because the privilege belongs to the client, the client can waive the privilege either on purpose or inadvertently.  For the privilege to apply there must be in expectation of privacy and confidentiality.  Disclosing to other people what your lawyer has advised can be construed as a waiver of solicitor-client privilege.

The Family Law team at Pushor Mitchell understands solicitor client privilege, and the importance of confidentiality when working with their clients.

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