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Is it when the attorney gets paid? Can attorney client privilege exist even if the clients payments are inarears? When exactly is the moment when the privilege comes into existence? If you make an appointment is there this privilege from the moment you start speaking?
How exactly does it work?
It starts the moment that an attorney/client relationship is established, and the client communicates any confidential information to the lawyer. This is usually the moment that the lawyer agrees to represent the client.
It may also apply to disclosures made by the client in the course of the lawyer assessing whether s/he will represent that client.
It exists even if the lawyer is never paid, and may not be held hostage against payment. It applies to all information communicated between attorney and client while the relationship is in place, with a few limited exceptions.
Advice on how to commit a crime is not covered. Billing information may not be covered. Information communicated in the presence of a third party is usually nnot covered. Information that the lawyer is directed to convey to a third party is not covered. Information that was already public is, I believe, not covered.
The client may waive the privilege as to any particular item ofm information, should the client so choose.
The Supreme Court has said (Descôteaux et al. v. Mierzwinski, [1982] 1 SCR 860):
In summary, a lawyer’s client is entitled to have all communications made with a view to obtaining legal advice kept confidential. Whether communications are made to the lawyer himself or to employees, and whether they deal with matters of an administrative nature such as financial means or with the actual nature of the legal problem, all information which a person must provide in order to obtain legal advice and which is given in confidence for that purpose enjoys the privileges attached to confidentiality. This confidentiality attaches to all communications made within the framework of the solicitor-client relationship, which arises as soon as the potential client takes the first steps, and consequently even before the formal retainer is established.
While the judgment somewhat conflates the terminology of confidentiality and privilege, these are distinct concepts. Privilege is the right of the client. It is a rule of evidence and has a constitutional dimension that protects against state intrusion. The duty of confidentiality is imposed on practitioners by law society rules. Descôteaux was in context clearly speaking about privilege and has been cited for this point related to privilege in many subsequent cases. See e.g. Maranda v. Richer, 2003 SCC 67 at para. 22.
