- Chambre des notaires found that a limitation imposed on solicitor-client privilege (SCP) that was “not absolutely necessary to achieve the purposes of the ITA” thereby infringed on s. 8 of the Charter.
- Furthermore, that case found that it was “not absolutely necessary here to rely on notaries or lawyers rather than on alternative sources in order to obtain the information or documents being sought.”
- Considering the number of parties simultaneously subject to the MDR disclosure obligations, and considering that subjecting lawyers to an MDR disclosure obligation creates a high-risk situation for the clients to whom the SCP belongs, it does not seem “absolutely necessary” to rely on lawyers “rather than on alternative sources in order to obtain the information or documents being sought.”
- Other jurisdictions instead place the primary disclosure obligation on the promoter.
- Chambre des notaires also noted that SCP belongs to the client, not the lawyer.
- Relying (as contemplated under ss. 237.3(17) and 237.4(18)) on lawyers to raise SCP would place an “inappropriate burden” on them (see Chambre des notaires, at para. 44) and, in particular, they would be caught between their duty to assert SCP and the potentially severe sanctions for failing to report all relevant information, thereby putting them in a position of direct conflict with their clients’ interests.
It is arguable that lawyers, in order to satisfy their disclosure obligations without divulging any information specific to a particular solicitor-client relationship, may validly opt to disclose the mere existence of a document without revealing its context and content. One may reasonably wonder, however, how this will serve the timely collection of information that the disclosure obligations seek to achieve. (p.12)
- The MDR design does not seem to address the unauthorized sharing of privileged information, despite the importance of SCP.
- Chambre des notaires found that a limitation imposed on solicitor-client privilege (SCP) that was “not absolutely necessary to achieve the purposes of the ITA” thereby infringed on s. 8 of the Charter, and further found that there it was “not absolutely necessary … to rely on notaries or lawyers rather than on alternative sources in order to obtain the information or documents being sought.”
- Considering the number of parties simultaneously subject to the MDR disclosure obligations, and considering that subjecting lawyers to an MDR disclosure obligation creates a high-risk situation for the clients to whom the SCP belongs, it does not seem “absolutely necessary” to rely on lawyers “rather than on alternative sources in order to obtain the information or documents being sought.”
- Other jurisdictions instead place the primary disclosure obligation on the promoter.
- Relying (as contemplated under ss. 237.3(17) and 237.4(18)) on lawyers to raise SCP would place an “inappropriate burden” on them (see Chambre des notaires, at para. 44) and, in particular, they would be caught between their duty to assert SCP and the potentially severe sanctions for failing to report all relevant information, thereby putting them in a position of direct conflict with their clients’ interests.
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