Tuesday, November 19, 2013

Canadian Court on Client Rights and Lawyer's Files

Interesting update and commentary from the University of Calgary Faculty of Law Blog: "Client Rights and Lawyers’ Files." Commenting on a recent decision: Royal Bank of Canada v Kaddoura, 2013 ABQB 630 --
  • "In a recent decision, Master Prowse held that a client who sues a lawyer may obtain production of documents from the files of other clients of the lawyer. The production of specific documents may be resisted on the basis of solicitor-client privilege. Master Prowse did not, however, impose any requirement that those clients be given notice of the production of documents from their files, did not consider whether the documents contain confidential (as opposed to privileged) information, whether the documents are properly considered to be in the 'control' of the lawyer, or assessment of the risk of prejudice to the legal interests of those clients from disclosure."
  • "In short, the judgment appeared to give no weight or consideration to those clients. This result is unfortunate, and inconsistent with the usual respect afforded to the confidentiality of lawyer-client communications."
  • "The key point I am making here is that in any circumstances in which a court or party is producing information from a client’s legal file, and is doing so without representation of that client’s interests, there are reasons to be seriously concerned… At minimum, the client whose information may be producible as a consequence of a ruling such as this ought to be notified, and given the opportunity to object.  More substantially, the default position should be that information in a lawyer-client file is not producible, absent some basis for production of specific information in that file."

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