While solicitor-client privilege dates to the 16th century, the law regarding privilege continues to evolve. In today's complex commercial litigation landscape, privilege requires careful consideration and rigorous protection to avoid unintended consequences.
Below are five dimensions of privilege to consider in business disputes and investigations:
- Solicitor-client privilege protects the confidentiality of communications between a lawyer and their client. To establish this privilege, communications must seek, formulate or give legal advice, involve a lawyer and the client, and remain confidential. Meeting all three of these elements is essential to a claim of solicitor-client privilege.
- Litigation privilege creates a zone of privacy to protect a litigant's preparation for pending or apprehended litigation. This privilege specifically applies to communications and material created with litigation as their dominant — but not necessarily sole — purpose. The document's purpose is considered from the time it was created.
- Settlement privilege ensures that communications expressly made in respect of settlement of a dispute are not admissible in court if the negotiations fail. Establishing settlement privilege requires clear intentions that this information would not be disclosed if negotiations failed. Notably, a lawyer does not necessarily need to be involved in communications covered by settlement privilege.
- Privilege in internal investigations is assessed on a document-by-document, communication-by-communication basis. For this reason, establishing privilege can be challenging, and missteps can lead to the investigation falling outside the scope of privilege. A purposeful investigation structure, clear directives and the involvement of legal counsel from the outset are essential to shield investigative communications from compulsory disclosure.
- Common interest privilege is not a separate category of privilege but is an exception to the general rule that disclosing privileged communication to a third party waives privilege. It applies when privileged information is disclosed to a third party who shares a common interest with the client and the subject matter of the legal advice provided.
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