(Federal Court of Canada) Giles ASP said: ‘Solicitor and client privilege is one of the basic principles which permit the operation of our justice system and public confidence in it. In order to support the public interest in the inviolability of the solicitor and client relationship the courts have imposed great inconvenience and have overridden without question personal rights such as the right of a person to choose his own counsel. In this case there is no suggestion that a lawyer who once acted for the defendant is now with the plaintiffs’ firm. There is no suggestion of a solicitor and client relationship having been established between the defendants and anyone at Gowling’s. The public interest in solicitor and client relationship is not engaged.
In my view the implied undertaking would be most impractical if it resulted in an ability to remove from a case any solicitor who was bound by an implied undertaking. The implied undertaking is not of sufficient public interest when balanced against the right of a party to choose his own solicitors and the public interest in the efficient administration of justice to require the court to disqualify any solicitor who might wrongly deploy information subject to the undertaking. If a solicitor fails to observe the undertaking the remedy is to cite him for contempt, not to remove him.
A lawyer who takes cases regularly must have acquired a great deal of information subject to implied undertakings. In these days of specialized education and long work hours for junior lawyers, it is possible that a significant percentage of a lawyer’s general knowledge will have been acquired in his practice of law, there having been little other opportunity for him to acquire the same. It is equally possible that a large portion of that general knowledge will be subject to implied undertakings. If the defendant’s submissions are correct, few lawyers who have been called for any length of time will be able to take part in litigation. It is to be remembered that the undertaking is to the Court and is not limited to deploying information in cases involving one or more of the same parties.’
Judges:
Giles ASP
Citations:
[1992] 3 FC 774
Cited by:
Cited – British Sky Broadcasting Group Plc and Another v Virgin Media Communications Ltd and others CA 6-Jun-2008
The parties were involved in litigation concerning allegations of anti-consumer practices. It was agreed that commercially sensitive documents should be exchanged, but the terms protecting the confidences could not be agreed. The parties were also . .
Lists of cited by and citing cases may be incomplete.
Commonwealth, Legal Professions
Updated: 15 May 2022; Ref: scu.268777