Convocation has approved Guidelines for Law Office Searches for the benefit of Ontario lawyers. The Guidelines are intended assist lawyers in fulfilling their professional obligations in the event of a law office search. They include specific steps that can be taken to protect solicitor-client privilege in various circumstances.
Lawyers are strongly encouraged to refer to the Guidelines immediately in the event of a law office search.
The Guidelines reflect the following core principles, which stem from the relevant jurisprudence, particularly Lavallee, Rackel & Heintz v. Canada (Attorney General) (Supreme Court of Canada, 2002):
- Solicitor-client privilege belongs to the client. The lawyer is trustee of the client’s privilege.
- Solicitor-client privilege is of supreme importance in Canadian law. It is a “principle of fundamental justice” incorporated in section 7 of the Charter of Rights and Freedoms.
- Solicitor-client privilege falls out of the state’s reach, even for reasons of investigative necessity. Only the courts are competent to adjudicate and determine issues of solicitor-client privilege.
- The court in Lavallee concluded that the Criminal Code procedures for the search of a law office then in force are unconstitutional. Hence only the common law applies to a law office search where the protection of solicitor-client privilege is at issue.
- A lawyer subject to a search of his or her office has a duty to assert and to protect the solicitor-client privilege held by all his or her clients.
Download Guidelines for Law Office Searches (PDF)
Read Professional Regulation Committee report to Convocation (PDF)
Notice to Paralegals
The Law Society is planning to develop comprehensive guidelines to assist paralegals in protecting their clients' confidential information in the event of a law office search.
Paralegals who are or suspect that they may be the subject of a law office search, whether they or a client are the target of the investigation, are encouraged to call the Law Society as soon as possible.
Paralegals should contact the Law Society at 416-947-3963 to speak to Senior Counsel Professional Regulation for assistance when faced with a law office search.