4 LEXPERT
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2017
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WWW.LEXPERT.CA
PHOTO:
SHUTTERSTOCK
SOLICITOR-CLIENT PRIVILEGE
A ruling that threatens
the concept of "common-
interest" privilege has
shaken the foundations
of transactional law
By Sandra Rubin
PRIVILEGE
THREATENED
Solicitor-client privilege is a bit like a dor-
mant volcano. It is part of the landscape for corpo-
rate lawyers and their clients, who depend on it re-
maining fairly stable. ree recent court decisions,
however, have sent out some fairly significant trem-
ors, and anybody who owns a business or is part of
the executive team working on a deal would be wise
to pay attention.
e first and most important case has to do with
privilege in the context of doing a transaction.
Solicitor-client privilege lies between the lawyer
and his or her client, and only the client can waive
it. When a business is looking at doing a merger
or making an acquisition, it's normal to make all
kinds of documents available to the potential buyer
as part of the due diligence process, subject to con-
fidentiality agreements. e sharing of privileged
documents in this context has long been consid-
ered by the courts to be protected by "common-
interest privilege" — the common interest being to
get the deal across the finish line.
