Best Practices To Adopt In Reaction To The Unauthorized Communication Or Retrieval Of Privileged Information

TABLE OF CONTENT

1. Introduction and Context

2. Overview of the Principle : Celanese and Subsequent Decisions

3. Rules of Conduct in Common Law Provinces

4. Ethical Implications in Quebec

5. Conclusion and General Advice

1. INTRODUCTION AND CONTEXT

Case law and Codes of conduct across Canada have cemented the principles guiding how parties should behave when privileged documents are communicated inadvertently or retrieved without authorization from the beneficiary of privilege. The increasing exchange of large volumes of information enabled by new technologies can easily lead to this unfortunate situation, which can equally affect materials covered by solicitor-client privilege, settlement negotiations or litigation privilege. Herein, we offer an overview of the rules governing the conduct an attorney should adopt in response to this situation. Without surprise, no use can be made of privileged materials obtained without consent, but it