Can a solicitor's accounting records be privileged?
British Columbia, Canada
The following excerpt is from Donell v. GJB Enterprises Inc., 2012 BCCA 135 (CanLII):
At para. 22 the court stated: The second limitation to distinction (b) is more substantial and important. Lawyers usually get money for purposes ancillary to their retainer, and the purpose of their retainer is usually to (a) run or defend litigation or potential litigation, (b) give legal advice, (c) protect a client in closing a deal, (d) negotiate a deal, or (e) some combination of the foregoing. If legal advice, or running or defending litigation or potential litigation is the dominant purpose of the retainer, then a solicitor's accounting records ancillary to that may well be privileged. And if litigation or legal advice is a distinct part of the retainer, then the solicitor's accounting records ancillary to that distinct part may well be privileged. Conversely, if the retainer at the time of receipt of funds is merely to act as a paying agent, there might be no privilege: Maranda v. Leblanc, supra, at para. 30. The court added that the precise limits of privilege will have to be worked out through the case law.
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