Solicitor-Client Privilege (0.50 CPE)

This session discusses the impact of retaining a lawyer early in the investigation process for the purpose of giving legal advice to the party sponsoring the investigation. It reviews how legal privilege works to protect information shared between the client and the solicitor during the relationship. It distinguishes between legal advice privilege and litigation privilege since confidentiality protection can apply in both circumstances. The session explains that not all information is able to be protected. The test is that the material be integral to the process of providing legal advice. Reports prepared in advance of retaining counsel may not be privileged. The way in which to approach investigations using counsel from the outset is discussed. The value of a properly drafted retainer agreement is emphasized as a useful tool in defending claims by other parties that confidential reports should be released at discovery. The possibility of the retained solicitor retaining an investigator to assist in the collection of facts and their assessment is discussed. The definition of roles and purpose are reviewed. How solicitor-client privilege may apply to the activities of the investigator is covered. Included are Draft Affidavit and other material aids including some case studies.