SOLICITOR-CLIENT PRIVILEGE FOR ETHICS COUNSEL: LESSONS FOR CANADA FROM THE UNITED STATES

Abstract

Canadian law firms are increasingly designating lawyers within the firm to act as ethics counsel, advising the firm’s other lawyers. This article considers whether communications with ethics counsel should be subject to solicitor-client privilege, so that the firm would not be required to disclose them to the client. While there is virtually no analysis of this issue in a Canadian context, it has been raised in both jurisprudence and commentary in the United States. The first part of this article reviews the American position. The article’s second part considers the Canadian authorities that bear, at least indirectly, on the issue and makes recommendations for the development of Canadian law.