In R. v. McClure [2001] 1 S.C.R. 445, the Court held that solicitor-client privilege was a principle of fundamental justice and indicated that it could be protected under section 7 of the Charter. To get the best legal advice, a client needs to know that they can be opened with their legal counsel without risking their communications being used against them. The principle of solicitor-client privilege protects communications between legal counsel and clients that are disclosed without the client`s permission. However, not all advisors are created equal when it comes to privilege, and you need to make sure you trust the right person with your “warts and all” communications. The Supreme Administrative Court of Lithuania (SACL) has ruled on the protection of professional secrecy in the investigation of infringements of competition law. SACL confirmed the decision of the Competition Council of the Republic of Lithuania (“Competition Council”), (…) Not all elements of the client relationship are protected by or contained in solicitor-client privilege.

For example, the existence of the client relationship or the duration of the relationship is not privileged information.32 In fact, the general nature of the services provided by the lawyer, including the manner in which they are retained, is generally traceable. However, none of these proposals represent a silver bullet, and disclosing your legal counsel`s advice always carries the risk of waiving privileges. The subject matter of the communication was central to the purpose test. In the context of that test, the courts had to determine, first, whether the purpose of the communication at issue was to obtain and provide legal advice to the company, (b) whether the employee`s supervisor had insisted that the communication be made by the employee, and (c) whether the subject matter of the communication to the lawyer fell within the competence of the employee concerned. Thus, if the subject matter of the communication to the lawyer concerned the employee`s duties to the company, solicitor-client privilege would cover that communication, regardless of the social rank of the employee who made the communication. See Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970), aff`d by an equal divided court, 400 U.S. 348 (1971). ↩ Lamer J.

put the test of solicitor-client privilege in Decoteaux v. Mierzwinski:[11] The courts have been faced with the daunting task of determining when solicitor-client privilege applies when a company is the client. For years, the courts have used one of two “criteria” to reach this conclusion: the case test13 and the comparison group test.14 However, the current trend is to determine whether the issues addressed are covered by the employee`s duties and responsibilities. Exception of common interest. Where two parties are represented in the same legal case by the same lawyer, neither client privilege may invoke solicitor-client privilege against the other in subsequent litigation if the subsequent dispute concerned the subject matter of the previous joint representation. This paper examines the laws, policies and procedures governing professional secrecy in the application of EU antitrust rules. It focuses mainly on the application of Articles 101 and 102 TFEU by the European Commission, but also briefly addresses the application of EU competition law by competition (…) An express contract is not required for the establishment of a solicitor-client relationship; The relationship may be implicit from the behaviour of the parties. However, the relationship cannot exist unilaterally in the mind of the potential client, unless there is a “reasonable presumption” that the relationship exists between lawyer and client.

The implied relationship can be evidenced by several factors, including, but not limited to, the circumstances of the conversation, the payment of fees to an attorney, the degree of sophistication of the potential client, the request for and receipt of legal advice, and the history of legal representation between the alleged client and the practitioner. While this list of factors is illustrative, none of these factors alone will confirm the existence of a solicitor-client relationship.12 The basis for this rule is not difficult to discover. This is not (as has sometimes been said) because of any particular importance that the law attaches to the activity of law professors, or because of a special provision to grant them protection. But this is done out of consideration for the interests of justice, which cannot be maintained, and for the administration of justice, which cannot continue without the help of men who are in jurisprudence, in the practice of the courts and in questions concerning rights and duties, which are the subject of all judicial proceedings. If privilege did not exist at all, everyone would depend on his own legal means, without professional help, a man would not dare to consult a skilled person, or dare to tell his counselor only half of his case. [2] Unfortunately, it is not always so clear when a solicitor-client relationship exists. Let`s say Sally Smith contacts David Jones, a lawyer, by phone. During the conversation, Smith Jones explained that it was involved in a dispute with the Internal Revenue Service over a tax-saving agreement designed for specific business purposes.

She reveals important facts and very sensitive information during the conversation, then asks Jones for his legal opinion. Is the content of this conversation privileged? That depends. How can we advance the debate on in-house legal privilege? With the recent judgment of the Court of First Instance of the European Union in the Akzo-Nobel case (currently pending before the Court of Justice), the issue is more urgent than ever. Between the extreme positions (…) The safest course of action is not to share your legal counsel`s advice or any part of it with third parties. Of course, this is not always feasible. If you wish to disclose the notice, you must first obtain confirmation from the third party that the advice will be obtained on the following basis: Solicitor-client privilege (“BVG”) is the ability for a client to refuse to provide documents containing legal advice received from a lawyer in the course of a legal proceeding or investigation. In common law countries, the BVG applies to communications with outside lawyers or in-house counsel. At EU level, the SNB does not extend to communication with registered in-house lawyers. In our example above, there is probably no confidential relationship without more, unless there is a history of previous representation.

Of course, if the conversation continues and Jones continues to provide legal advice, then Smith could reasonably assume the relationship exists. This reasonable belief would be reinforced by evidence that Smith and Jones discussed payment, possible courses of action, and other details about the future handling of the case. Death of a client. The privilege may be violated in the event of the death of a testator-client in the event of a dispute between the heirs, legatees or other parties of the deceased who claim the deceased client. The “control group” was defined by the courts to include employees who were in a position of control, allowing them to play a critical role in determining what actions the company would take after receiving legal advice. See, for example, City of Philadelphia v Westinghouse Elec. Corp., 210 F. 483, 485-86 (A.D. Pa. 1962). ↩ BVG has also been taken into account in Akzo.

In particular, Akzo sought protection of documents drawn up for the purpose of obtaining legal advice from a lawyer in the exercise of the rights of the defence. These documents were not themselves communications with a lawyer. They were not created for the purpose of being physically sent to a lawyer (as in AM&S), nor to account for the content of communication with a lawyer (as in Hilti). The Court of First Instance held that, in principle, the BVG had to be attached to such `preparatory acts`, but did not grant Akzo`s application by LPP for the documents at issue (Akzo, paragraph 123). Akzo appealed against that judgment to the Court on another issue, namely whether LPP could join a communication with in-house lawyers. The Court dismissed Akzo`s action on the ground that a lawyer is not independent if he is bound by an employment relationship with his client (Court, paragraphs 40 to 51). This is also the case if the lawyer is registered with the bar and is therefore subject to certain professional and ethical obligations. Since privilege is held by the client, not the lawyer, the client has the ultimate authority to invoke or waive it.24 If the client is a business, privilege is generally considered a matter of control of the business. In other words, management or the “control group,” including officers and directors, decides whether to assert or waive the privilege.25 In the event of a change in control of the corporation, ownership of the privilege passes to successors; It does not remain in the hands of the former management.26 The issue of the protection of professional secrecy has never been more urgent in the context of merger control than it is today, as competition authorities increasingly make requests for information similar to the scope of inspections.

But while the question of (…) In England and Wales, rules relating to solicitor-client privilege are set out in the common law.