Annual Audit Manual
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3047 Solicitor-client privilege letter
Jun-2020
Overview
This topic explains:
- What solicitor-client privilege is
- Why we send a solicitor-client privilege letter at the outset of the annual audit
- Some important elements of the issuing process of the solicitor-client privilege letter
OAG Policy
For each annual audit, the engagement leader shall ensure that a solicitor-client letter has been sent to the entity. [Oct‑2012]
OAG Guidance
The Auditor General Act (AGA) and the Financial Administration Act (FAA) provide for access to information necessary to fulfill the Auditor General’s responsibilities under the Acts. The Acts entitle the Auditor General to free access at all convenient times to this information. The Auditor General is also entitled to receive from members of the public service and Crown corporations such information, reports, and explanations as he deems necessary. The Auditor General decides the nature and type of information needed to fulfill the responsibilities set out in legislation. These are very strong provisions, which prevail against all other Acts of Parliament, unless those other Acts of Parliament expressly limit access and refer to the appropriate sections of the Auditor General Act (AGA).
The solicitor-client privilege letter is issued at the outset of the annual audit. The solicitor‑client privilege letter sets out the conditions under which the Office may request access to, among other things, documents that may be subject to solicitor‑client and other privileges. Solicitor‑client privilege is the right to refuse to disclose, and to prevent others from disclosing, confidential communication made with a lawyer for the purpose of furnishing or obtaining professional legal advice or assistance.
By agreement between the Office and the federal Department of Justice, a particular process is used in relation to the Office’s treatment of documents that are subject to solicitor-client privilege. The process is a result of the decision of the Federal Court of Canada in Professional Institute of the Public Service of Canada (PIPSC) v. Director of the Canadian Museum of Nature (T-2689-94). The Federal Court concluded that because the Museum had voluntarily surrendered documents to the Office that were protected by solicitor-client privilege, the privilege attached to the documents had been waived and the documents were no longer subject to protection from disclosure.
As part of the agreement with the Department of Justice, a letter is sent to the entity in the required form. The letter states that access to solicitor-client protected documents is compelled by the Office under the AGA or the FAA and, therefore, release of the documents to the Office does not constitute a waiver of privilege by the entity. This allows the entity to preserve the privilege while meeting the information needs of the Office. When requesting access to documents subject to solicitor-client privilege, the Engagement Leader exercises judgment and ensures that only information essential to the audit is requested.
In issuing the solicitor-client privilege letter, the engagement team must:
- use the most recent template posted on the INTRAnet,
- uphold the content of the template with no exceptions, and
- prepare the solicitor-client privilege letter following the official languages guidance in OAG Audit 2213.
In issuing the solicitor-client privilege letter, the engagement team must not:
- combine the content of the engagement letter and the solicitor-client privilege letter, or
- modify the content of the templates.
Solicitor-client privilege letters are signed, on behalf of the Office, by the Engagement Leader. Once signed on behalf of the Office, a copy of the letter is provided to the entity to be kept for the entity’s own records. Delivery of the letters typically takes place via regular mail.
An explicit response is required from the entity to obtain agreement that the entity will comply with any requests that the engagement team makes for access to relevant documents under the entity’s control, including documents to which solicitor-client privilege attaches. A draft response is suggested by the Office and is sent with the original letter. The response of the entity is signed by its authorized representative. In the event that the entity refuses to provide a response to the solicitor-client privilege letter, the team should contact Legal Services and Audit Services.
Related Sections
OAG Audit 1192—Confidentiality, safe custody, integrity, accessibility, and retrievability of engagement documentation.