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BARRISTERS AND SOLICITORS - Confidentiality - Duty to follow instructions

Monday, June 17, 2019 @ 11:16 AM  


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Appeal by the Province and a Notice of Contention by the respondent from a decision finding that instructions given by the Province to the respondent were solicitor-client privileged but that the Province had waived privilege by impugning the respondent’s conduct. The respondent acted as counsel for the Province in an Aboriginal appeal alleging that the Province did not make every reasonable effort to consult and accommodate the Band. The respondent raised a Sovereignty Argument negating a duty to consult. In official statements, the Province questioned that the respondent had been instructed to make the Sovereignty Argument. The respondent commenced an action against the Premier, the Attorney General and the Province for defamation, abuse of public office, constructive dismissal and violation of his constitutional rights. The chambers judge found that the instructions the respondent had received, as set out in the Notice of Intended Action, on the appeal were solicitor-client privileged. The application judge found, however, that it was unfair for the Province to suggest publicly that the respondent acted without instructions or contrary to instructions, while at the same time asserting privilege to prevent him from revealing his understanding of the instructions. The respondent, by way of Notice of Contention, argued that the application judge’s decision should be upheld on the basis that the instructions given to him were not intended to be confidential and, accordingly, were not privileged. He also argued the Attorney General, as the Chief Law Officer of the Crown, was precluded in the circumstances of this case from claiming solicitor-client privilege.

HELD: Appeal and Notice of Contention dismissed.  The application judge did not err in finding that the communications were solicitor-client privileged or in finding that privilege was waived.  The authorities clearly recognized that one example of implied waiver was where a client impugned the conduct of his lawyer, and disclosure of privileged information by the lawyer was necessary to defend the allegations of malpractice or misconduct. It would be manifestly unfair to allow the Province to hide behind solicitor-client privilege while at the same time impugning the conduct of its solicitor. The Province’s position, that a client could publicly disparage his lawyer with impunity, if it was done impliedly and not in the context of an existing court proceeding, was not supported by the authorities. The application judge applied and followed a well-established line of cases which recognized that it would be inconsistent and unfair for the holder of the privilege to publicly dispute instructions on the one hand, and yet maintain that those instructions were privileged on the other, thereby preventing the lawyer from disclosing those instructions to vindicate his or her professional reputation. The instructions the respondent received about advancing the Sovereignty Argument could not be separated from the legal analysis and legal strategy of the appeal. Therefore, the issue of whether communications conveying only instructions to make the Sovereignty Argument were privileged did not arise on the facts. What other higher public interest the Attorney General might have did not reduce her entitlement to solicitor-client privilege. Solicitor-client privilege was held to arise when in-house government lawyers provided legal advice to government agencies. To suggest that the Attorney General was precluded from claiming solicitor-client privilege because of her higher public interest was not supported on the authorities.

Cameron v. Nova Scotia (Attorney General), [2019] N.S.J. No. 211, Nova Scotia Court of Appeal, D.P.S. Farrar, J.W.S. Saunders and L.L. Oland JJ.A., May 16, 2019. Digest No. TLD-June172019003