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Re: Gov't. Attorney papers and confidentiality?



In the Canadian context, our federal access law has a section under which we
can restrict access to material subject to solicitor-client privilege, BUT
that only applies when the material reflect communications between a
government agency and their legal advisor.  Any other correspondence, such as
copies of letters between the government and a lawyer representing an outside
client is not privileged, even if it includes copies of correspondence
between that lawyer and his client, because of course by providing the copies
to a third party, in this case the government, the privilege which had
existed between client and solicitor has been breached.  In the same vein,
since the government in the client, it can waive the privilege, so that
material subject to solicitor-client privilege may be released if there is no
overriding interest in protecting the substance of the communications.  As an
amusing note, a few years ago when a request for access to government records
was received by one of our federal departments, they located some
correspondence between the department and the Department of Justice in which
the latter acted as legal advisor for the former.  In that case the
department which had asked for legal advice was willing to waive the
privilege and release the material, but the lawyers demurred - it seems that
when the department had asked for the legal advice they had done so on behalf
of the crown, and the lawyers claimed that the privilege therefore did not
rest with the department but rather with the Crown, although whether they
meant with the Governor-General as the Crown's representative in Canada, or
whether they thought the department should have contacted the Queen and asked
for permission to release the material is really not clear.  In the end the
lawyers backed off, but it does show just how seriously they take the whole
subject of solicitor-client privilege.

Daniel German
ATIP Analyst
National Archives of Canada
(613) 996-3125
dgerman@archives.ca
---------- Original Text ----------

From: "Bill Brown" <wbrown@NCSL.DCR.STATE.NC.US>, on 2000-04-28 10:45 AM:

>        The general thought on attorney-client privilege is that it
legally lasts
>into perpetuity, even after the clients death.  This is done to ensure
>that clients will have no fear of speaking to their attorney with candor-a
>vital requirement for effective representation.

Jennifer,

        Does the perpetuity of attorney-client privilege extend to activites of
Government General and Legal Counsels?  Am I correct that some of the
recent rulings of the US Supreme Court now open those records, since those
counsels mentioned would be on the government payroll?

Thanks,
Bill






"When it comes to War, I do not like to take sides!"
Sgt. Schutz [Hogan's Heroes]

*******************************
William H. (Bill) Brown, C.A.
Governors' Records Archivist
North Carolina State Archives
4614 Mail Service Center
Raleigh, NC 27601-4614
919-733-3952 (T), 919-733-1354 (F)
wbrown@ncsl.dcr.state.nc.us
*******************************

"Opinions expressed in this message may not represent the policy of my
agency."

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