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Solicitor-Client Privilege-Keeping your legal advice out of the fray

Two recent BCSC court decisions illustrate the fine line that divides conduct that waives solicitor-client privilege and conduct that merely acknowledges the receipt of legal advice. In one case ( the court found that a municipality's acknowledgement of the receipt of legal advice, or that unspecified legal advice was considered, did not constitute a waiver of solicitor client privilege. The admitted fact that the municipality obtained legal advice before finding a tendered bid to be non-compliant was not an admission of the reliance or content of the legal advice.

In the other case ( the court found that an affidavit in which the municipal lawyer attested to her knowledge of what documents constituted the exclusivity agreement between the litigating parties meant that the content of the lawyer's advice regarding that agreement "entered the fray" of litigation and waived privilege over related legal issues.

The key difference between the two cases is that one municipality’s defence did not depend on the fact that the municipality received legal advice or the content of the legal advice, but the other municipality’s evidence of the lawyer’s belief and understanding was found to go to a “matter of substance in the litigation.” As a general rule, in order to protect solicitor client privilege municipal employees, officials and members of council should not disclose the content of the legal advice they received or the fact they acted in reliance on such advice.

Michael Moll

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