A new client recently came to see us. He is a construction entrepreneur specializing in road-building contracts. He told us:
“I am really worried about my current lawyer. You see, I was bidding on a $500,000.00 contract out in eastern Quebec. The other bids were pretty close, as far as I knew, but I figured to make a nice profit. My lawyer knows the guy from the town who was going to make the final decision, so I came up with this idea to slip the guy $10,000.00 in order to get the contract. I put $10,000.00 in cash in a briefcase and gave it to my lawyer. He drove out to see his friend on the weekend at his chalet and gave him the cash from the briefcase. That way, we figured that there was no way anybody could find out. I got the contract and I made a nice profit.
Now, I think I’m in trouble. I heard that the guy’s wife is divorcing him and she was there when my lawyer showed up. I think she may have talked to some town councillors and maybe even to the local police or the Sûreté du Québec. I heard that the SQ might be about to talk to my lawyer, or even get search warrants or even arrest him.
Listen, he is my lawyer. Whatever I say to him is confidential, right? He can’t rat me out and tell the cops what we did, can he? He can’t testify against me in court, can he?”
As a concept, attorney-client privilege is extremely important in our legal system, whether in civil cases, criminal cases or otherwise. The client needs to have confidence that whatever he tells his attorney for the purpose of consultation or representation or obtaining legal advice remains confidential, unless the client expressly relieves his lawyer of the obligation to keep such information and discussions confidential. The attorney-client privilege is among the most serious duties and obligations of lawyers, protected by a Code of Ethics, as well as the law and jurisprudence.
However, that privilege is not absolute. It does not apply when discussions between a lawyer and his client spill over from consultation and move into the area of active participation in or collusion with the client for illegal or fraudulent acts.
Thus, when the construction entrepreneur concocted a plan with the lawyer to pay a $10,000.00 bribe to the official of that town in eastern Quebec, in order to win a lucrative road-building contract, those actions became collusive activities in furtherance of a criminal purpose, which was in all likelihood both an infraction of the Criminal Code as well as fraud which can be the target of civil lawsuits, both by the town which awarded the contract to the entrepreneur, as well as the other contract bidders who lost out because of a bribe paid to the town official by the road construction entrepreneur.
Should the lawyer voluntarily give a statement to the police about the bribe, in the hopes of receiving a lighter sentence for himself by turning in the mastermind of the plot, the lawyer could not in such circumstances be prevented from making such a statement by invoking attorney-client privilege. If the lawyer received a subpoena to testify in court, whether in a civil or criminal trial, about these actions and, in particular, the plot hatched to bribe a town official, and about his participation in that plot, as well as his client’s participation in that plot, attorney-client privilege, even if claimed by the road-building entrepreneur, would in all likelihood be refused and the attorney would have to testify both as to his own role and his client’s role in paying this bribe.
Attorney-client privilege would, however, apply to our new client’s discussion with our office. He is consulting us about acts he has already committed prior to consulting us. He is seeking, from us, various advice and consultation with respect to his possible exposure to both civil lawsuits and to criminal prosecutions, as well as looking at the scope of attorney-client privilege that he might attempt to invoke against his previous lawyer. Our law firm would advise him and assist him to exercise his rights, and provide zealous representation, without ever knowingly promulgating false statements or colluding with him in the furtherance of any possibly illegal activities. In such circumstances, he would be able to validly invoke attorney-client privilege regarding our discussions about his current legal standing on various matters. He needs to have the confidence to freely discuss his legal situation and seek lawful ways to address or remedy his problems.
In conclusion, while attorney-client privilege is extremely important and valuable, in particular to the client, a client should never let his confidence in attorney-client privilege TRUMP his good sense and lead him to believe that he can use his lawyer to commit and hide illegal, fraudulent or criminal acts.
Franco Tamburro, Attorney-at-Law
Alepin Gauthier Avocats Inc.