What is Litigation Privilege for Communications Between Lawyers?

Question from An, What is Litigation Privilege for Communications Between Lawyers?

Answer from AI:

Litigation privilege in Canada protects communications made in preparation for legal proceedings, ensuring that parties can discuss and prepare their cases without fear of disclosure. Here’s a structured explanation of how it applies to communications between two lawyers:

Key Elements of Litigation Privilege

1. Definition and Purpose:

   • Litigation privilege safeguards communications created for the dominant purpose of litigation. It applies to both legal advice and material gathered for the case, whether the litigation is ongoing or anticipated.

2. Scope of Application:

   • It covers communications between lawyers, including discussions between counsel on the same side or opposing sides, as long as the communication is for litigation purposes. This includes strategic discussions and the exchange of information related to the case.

3. Exceptions:

   • The privilege may not apply if the communication is used for an illegal purpose or if disclosure is necessary for the administration of justice. Courts may compel disclosure under specific circumstances.

4. Duration:

   • Unlike solicitor-client privilege, which is often perpetual, litigation privilege is temporary. It generally lasts as long as the litigation is ongoing or contemplated. However, in some cases, it may persist beyond the conclusion of the litigation.

5. Purpose Requirement:

   • The primary purpose of the communication must be for the litigation. Casual or hypothetical discussions not directly tied to an actual or impending lawsuit may not be covered.

Practical Considerations

• Legal Consultation: Determining whether a communication is privileged often requires legal expertise. Consulting a legal professional is advisable, especially when dealing with exceptions or specific cases.
• Awareness for Lawyers: Lawyers should be mindful of the context and purpose of their communications to ensure they fall under litigation privilege.

Relevant Case Law

The Supreme Court of Canada has addressed litigation privilege in cases such as Blank v. Canada (Minister of Justice), which provides insights into its application and scope.

Conclusion

While this explanation provides a general understanding, the specifics of litigation privilege can vary. For personalized advice, consulting a legal professional is recommended. For further reading, the Blank v. Canada (Minister of Justice) case offers deeper insights.