Waiver of Solicitor-Client Privilege: Not so Fast! The Lawyer’s Daily (October 6, 2020)

(this article originally appeared in the Lawyer’s Daily on October 6, 2020)

By Nikolay Y. Chsherbinin and
Shawn Quigg

Solicitor-client privilege is best understood as a quasi-constitutional right to communicate in confidence with one’s lawyer. As an evidentiary concept, it applies only to confidential communication between clients and lawyers. It is sometimes confused, especially in the discovery context, with litigation privilege, which applies to communications of a non-confidential nature between the lawyer or the client and third parties for the purpose of the litigation. The former privilege lasts forever, while the latter ceases to exist upon termination of the dispute. However, either privilege can be waived via many means, including by a lawyer’s conduct. A case in point, is Hrvoic v. Hrvoic, 2020 ONSC 4495, a refusals motion, which provides a good analysis of when correspondence or evidence from a lawyer can waive privilege.

In Hrvoic, a married couple co-founded a company, Marine Magnetics Inc., which is wholly owned by a Holdco. In 2010, the couple separated, but continued to work together in the business. In October 2018, matrimonial litigation ensued, where the husband disclosed various formal documents all confirming his 70 per cent and his wife’s 30 per cent ownership interest in the Holdco. On Nov. 26, 2019, the husband brought an application for an order requiring the wife to sell her shares in the Holdco to him. In response, the wife delivered an affidavit alleging that the parties shared the ownership of the Holdco equally, 50/50.

In support of her assertion, or at least in an attempt to cast doubt on the husband’s position, the wife relied on an older letter from her husband’s matrimonial lawyer sent in the context of the custody dispute, which made a passing reference to the parties’ respective ownership being held 51/49. Although this did not technically support her position, it was contrary to the husband’s sworn statement. In response, the matrimonial lawyer wrote a letter to the husband’s civil litigation counsel, Gregory Sidlofsky, wherein he explained that his statement in the older letter was made in error and that the couples’ correct ownership in the business was 70/30. On March 2, 2020, the wife’s litigation counsel examined the husband’s matrimonial lawyer pursuant to Rule 39.03, as a witness on the pending application.

During the examination, where a critical issue was the couple’s ownership interest in the Holdco, a number of questions were refused on the basis of solicitor-client and litigation privilege. The purpose of the questions was to find out what the husband told or disclosed to the matrimonial lawyer during their professional relationship about the ownership issue. We pause to note that, however relevant, questions will be properly refused if the answer to such questions is subject to privilege, including solicitor-client privilege or litigation privilege. As a consequence, the husband’s refusals led to a motion to compel answers.

Most of the arguments on the motion concerned whether the husband lost or waived solicitor-client privilege or litigation privilege by putting into evidence his matrimonial lawyer’s letter correcting his prior letter that the wife was relying on in her materials.

The jurisprudence has identified two types of waiver: (1) express waiver, where it must be shown that the privilege-holder (a) knows of the existence of the privilege and (b) voluntarily evinces an intention to waive it; and (2) where fairness, rather than evidence, so requires.

The jurisprudence further illustrates that where a lawyer enters the litigation and provides evidence in the form of affidavit, the client may be taken to have waived the privilege, since the affidavit would become a formal part of the evidentiary record and subject the affiant to cross-examination.

However, in Hrvoic, the husband neither requested nor filed an affidavit from the matrimonial lawyer. Such an affidavit would have potentially led to the inference of an intention to waive privilege. Instead, he tactically filed the matrimonial lawyer’s letter as part of his supplementary application record just to respond to the letter that was inserted as an exhibit in the wife’s responding record. The intention was to have the matrimonial lawyer explain in the letter the ownership comment he made in his earlier letter and to do so in a form that was of no more evidentiary value than the original letter. The wife’s counsel strenuously argued that the privilege was waived and that it did not matter that there was no affidavit from the matrimonial lawyer.

The court disagreed. It reasoned that the fact that the husband relied on a hearsay letter from his matrimonial lawyer to explain the lawyer’s ownership comments in the earlier hearsay letter meant that he did not assign great significance to the contents of both letters. The court further observed that it was given no authority for the proposition that bolstering credibility through a lawyer’s explanatory letter per se justifies the disclosure of solicitor-client and litigation privileged information and documentation.

Hrvoic highlights an important technical legal point: a litigant risks waiving privilege by relying on evidence from his own lawyer; but it is unlikely that the privilege would be lost if that evidence is being put forward and relied on by the opponent.

The jurisprudence is replete with cases which demonstrate that courts have taken a dim view of litigants’ attempts to use the privilege as both a sword and a shield by filing their lawyers’ affidavits and then preventing them from answering questions on cross-examinations on the basis that the matters are purportedly covered by solicitor-and-client privilege. A lawyer’s attempt to retract his affidavit and, instead, rely directly on the client’s evidence will not undo the deemed waiver of the privilege caused by an affidavit. As one court aptly observed: “Once privilege is waived, it cannot be retracted.” It must be kept in mind that courts will assume that lawyers are familiar with the rules of privilege and, as such, the rules of waiver will be applied strictly to their actions.

It is only where a party relies on their own privileged communication as a material element of substance to advance their action or defence, and when that same party also seeks to shield parts of the privileged communication, that privilege can potentially be waived.

In Hrvoic, the court reminded that solicitor-client privilege is “sacrosanct” and can only be found to have been waived in the clearest of cases. Waiver will not be assumed. Once the privilege has been established, the privilege holder does not have to prove the absence of waiver. Instead, the burden of proving that the privilege was waived rests on the party alleging it. The waiver of privilege as to part of a communication will be held to be waiver of the entire communication.