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Are Clients’ Names Privileged? It Depends

Are Clients’ Names Privileged? It Depends

In Belley c. T.C. Auto Finance Services Inc., 2018 QCCA 1727, the Court of Appeal upheld an order requiring class counsel to provide a list of names of class members who had “registered” through counsel’s website as well as their province of residence. In so doing, it rendered an important decision regarding attorney-client privilege in the class action context that also has broader implications for attorney-client privilege with respect to clients’ names.

The decision arises in the context of a class action seeking damages as a result of the loss or theft of a tape containing client data in 2008. Though authorization was initially refused in 2012 because the class representative could not demonstrate a compensable loss or an adequate ability to represent the class, a subsequent action was eventually authorized in 2015 with respect to the same incident. In the second application for authorization, class counsel included a list of potential class members, including their city and province of residence and comments from some of the individuals.

In March 2017, defence counsel filed an application seeking disclosure of the “complete and updated list of registered class members, their registered forms as well as any claim supporting documentation which they have provided to Class Counsel”. Justice Lacoursière granted the application but limited disclosure to the names and province of residence of the class members (2017 QCCS 2668).

The Court of Appeal upheld the Motion Judge’s decision that the list was both relevant and not subject to attorney-client privilege. I will only address the privilege issue, though the discussion of relevance is also of interest for the class action bar (see [23] to [28]).

In addressing the privilege issue, the Court of Appeal commented on both the attorney-client relationship with class members post-authorization and the scope of attorney-client privilege with respect to client’s names more generally.

The Court of Appeal had no trouble holding that an attorney-client relationship existed in this case. It cited academic commentary concluding that “an attorney-client relationship exists between the class counsel and the post-authorization class members” although “the scope of the class counsel’s ethical obligations is still undefined.” [29] Second, the Court reiterated that “post-authorization class members are plaintiffs, and although they are not formally parties to the proceedings, they have the status of a quasi-party. There is only one legal category of class member.” [30] Finally, the Court concluded that “[although the distinction between “registered” and “unregistered” class members has no foundation in law, it has an incidence in the relations with the class counsel. Indeed, registered members have established some form of attorney-client relationship and are protected by attorneys’ ethical obligations.” [30]

However, even where an attorney-client relationship exists, “the content of protected information or communications […] varies according to the circumstances” [33] and does not necessarily extend to protecting the client’s name. As in any other case of attorney-client privilege, it must meet the Solosky criteria namely, (i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii) which is intended to be confidential by the parties. [32]

Because the name may be privileged, the proper approach is to presume the information is confidential. However, the presumption may be rebutted if it can be shown that (i) “disclosure of the information will not violate the confidentiality of the client/solicitor relationship by revealing directly or indirectly any communication protected by the privilege” and that (ii) “the requested information is not linked to the merits of the case and its disclosure would not prejudice the client.” [34]

According to the Court of Appeal, “[p]rotection of the client’s name by attorney-client privilege appears to be more the exception than the general rule.” [34]

Whether a class member’s – or any client’s – name is privileged will therefore depend on the circumstances, and most importantly, whether the information was intended to be confidential. In order to evaluate this, the Court outlined the following general principles:

  • Where a potential member communicates with class counsel and clearly indicates that his or her name not be disclosed, counsel cannot communicate the name;
  • Where class counsel invites contact indicating that communication will be dealt with confidentiality, this is not conclusive that the identity of the member is confidential. This determination would have to be made in context, on a case-by-case basis, applying the Solosky criteria;
  • Where class counsel contends that a class member’s identity is confidential, counsel cannot disclose it at any stage in the proceeding for any purpose without a clear and specific waiver from each class member whose identity counsel proposes to divulge.

In the present case, there was no indication that class members had any expectation in the confidentiality of their names when they registered. The notice did not promise confidentiality and, as indicated above, counsel had already disclosed a partial list at the authorization stage.

Finally, the Court noted that while exceptions may exist, class proceedings, like all proceedings, are presumptively public. While anonymity may be a consequence of the nature of the proceedings, class members are parties and there is no distinct principle of anonymity for class members. [43]

On the whole, this decision is an important message for all counsel to make sure clients’ expectations are both realistic and clear.

 

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