Solicitor-client privilege “belongs to the client, not the lawyer”. (Para. 39.) It “applies only to a communication between a lawyer and client, which is of a confidential character, and which is directly related to the seeking, formulating or giving of legal advice. Put differently, privilege will not attach to communications in which legal advice is neither sought nor offered or where the communication is not intended to be confidential. The purpose of privilege is to ensure that clients will not fear that information given in confidence to their lawyers may later be disclosed and used against them…” (Para. 40)
“[C]ourts have determined that solicitor-client privilege protects client names, but only in certain circumstances. … privilege protects client names where the identity of the client “constitutes the foundation of the retainer” or “the essence of the consultation” … the general rule is that client names are not per se privileged in Canadian law.” (Para. 41)
(As an example in the tax field: the client who goes to a lawyer to discuss voluntary disclosure should be entitled to have his name kept confidential.)
Mr. Thompson was a lawyer. CRA was auditing him. He tried to use his clients’ solicitor-client privilege to shield himself from the auditors’ requests for his business accounting records. (Paras. 2 and 52.) The Federal Court and the FCA didn’t support him because “there was no indication, on record, that the appellant had even informed his clients that he was asserting privilege on their behalf. Rather, it appears that he is attempting to protect his clients from knowledge of the whole matter.” (Para. 53.)
The FCA offered a helpful distinction between accounting records (such as trust account ledgers, cheque journals, statements of adjustments or disbursements, copies of invoices or receipts for payments) and statements of account. Statements of account could generally be privileged because they often summarize the work done; accounting records do not, generally, disclose confidential information, other than the name of the client.
“[57] Statements of account are not the same as a lawyer’s accounting records. The latter consist essentially of statements of fact such as the name of the client, the amount billed for the professional services, the payments received and the amounts still owed. Statements of account, by contrast, may reveal a history of the file. They may contain information including the nature of the consultation, a summary of communications between solicitor and client, and so on, which may be covered by solicitor-client privilege.”
In the end, the FCA ordered immediate disclosure of most documents the CRA sought but it said that Mr. Thompson’s clients should have a chance to protect the disclosure of their names by filing affidavits through him, after he contacted them. The clients’ affidavits would have their names blacked out until the Federal Court judge decided if they should remain hidden. This seems a hard burden to put on clients and their lawyers but it also seems to reflect the FCA’s distrust of Mr. Thompson.
The SCC has agreed to hear the CRA’s appeal of this decision. See Minister of National Revenue v. Duncan Thompson.
See Thompson v. Canada (National Revenue), (2013 FCA Trudel)