Safeguarding solicitor-client privilege

In a nutshell

The CBA’s Business Law Section and its Ethics and Professional Responsibility Subcommittee is responding to a consultation on proposed regulations to implement the Foreign Influence Transparency and Accountability Act (FITAA). The proposed regulations would include creating a public registry to enhance transparency and accountability of foreign influence activities. The CBA is concerned that this registry may obligate legal professionals to disclose information related to their representation of certain foreign clients, raising significant issues regarding solicitor-client privilege, confidentiality, and the lawyer’s duty of commitment to the client’s cause. 

Key concerns

The CBA believes the regulations should contain a defined mechanism for parties to object to, or prevent, the public disclosure of information based on solicitor-client privilege. The section recommends changes to the following regulations:

• Breadth of required disclosure: The obligation to record a “description of the arrangement” in the public registry is exceptionally broad. Of particular concern is the inclusion of details that could reveal the nature and purpose of legal advice or advocacy strategies undertaken on behalf of a client. This presents a significant risk of infringing upon a lawyer’s professional obligation to maintain client confidentiality.
   
• Public registry and privilege concerns: Canadian courts have consistently recognized that while the mere existence of a lawyer–client relationship is not ordinarily privileged, it becomes privileged where its disclosure would permit reasonable inferences about the nature of legal advice sought, the client’s legal position, or litigation or regulatory strategy. To preserve public trust in both the administration of justice and the transparency objective of the Act, the regulations should expressly carve out exemptions for information that falls within the scope of solicitor-client privilege or the lawyer’s duty of confidentiality. 
   
• Retention and ongoing intrusion: The requirement that registry information be retained for 20 years following the conclusion of an arrangement is concerning. Such an extensive retention period significantly prolongs the potential for intrusion into sensitive or confidential matters. 
   
• Investigatory and enforcement provisions: The proposed regulations appear to provide limited guidance on how investigative, or enforcement powers would be exercised. Any judicial authorization permitting searches, seizures or production orders should explicitly require consideration of solicitor-client privilege and provide for procedural safeguards, including the potential appointment of independent counsel to review and protect privileged information. 
   
• Interaction with the duty of loyalty and representation: The FITAA regime could, in practice, place lawyers in conflicting positions: the statutory duty to register and disclose may intersect with professional obligations not to act in ways that could compromise the client’s cause or reveal confidential information. 

Why this matters

Canada is an outlier among peer jurisdictions that have incorporated exemptions for legal professional services in their foreign influence registration regimes to preserve solicitor-client privilege. The CBA wishes to underscore the importance of solicitor-client privilege and recommends adding to the regulations explicit protections to preserve privilege, such as procedures to redact or withhold privileged information.

Read the full submission.