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PRIVILEGE ON DISCOVERY OF DOCUMENTS.

The protection afforded to communications between solicitor and client is too well established to admit of any discussion. It is the right and privilege of the client to have such communications absolutely protected, and it is one of the most sacred duties of the solicitor to maintain the utmost secrecy regarding such communications. Nevertheless in some Canadian jurisdictions the privilege has been invaded to a certain extent in cases where the client is a corporation.

The error doubtless arose from failure to apply the true test as laid down in Birmingham and Midland Motor Omnibus Company, Limited v. London and North Western Railway Company, wherein Lord Justice Buckley said that the test is: "Was the document obtained for the solicitor, in the sense of being procured as materials upon which professional advice should be given in proceedings pending or threatened or anticipated?" Here we have the guiding principle and all doubts on the subject seem to have been set at rest by the case of The Hopper No. 13.2

In that case there was a collision between a sailing barge belonging to the plaintiffs and the defendants' dredger. In the course of litigation which followed, questions arose as to production of a report received from the dredger in connection with the collision. The plaintiffs asked for production of it, and this the defendants refused on the ground that it was privileged. The report was made by the master of the dredger on a printed form headed "confidential report furnished for the information of the authority's solicitor in view of anticipated litigation, in respect of a casualty occurring between the authority's . . . and the .". It was made in obedience to general instructions issued by the authority to the masters of all their craft, that they were to make a report in triplicate on the form provided, “immediately after every casualty." By arrangement with the underwriters of the authority's collision risk. the report was sent to a firm of solicitors who invariably acted for the authority and the underwriters in collision cases.

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It will be observed that the procedure above set forth is very similar to that followed by large corporations in Canada, particularly the railway companies. These companies maintain claims

1 [1913] 3 K.B. 850 at p. 856.

2 [1925] P.D. 52.

departments and legal departments, and it is the practice as a matter of course to get reports from all concerned in every instance where an accident takes place. The decision in the Hopper case is, therefore of peculiar interest to those engaged in litigation for or against railway companies. It was held in the Hopper case that there having been a collision, it was to be anticipated that there would be litigation, and that although the report went through various hands, it was made for the purpose of being put before the solicitors; that the report, therefore, complied with the tests laid down by Lord Justice Buckley in Birmingham and Midland Motor Omnibus Co. v. London & North Western Railway Co, above referred to.

The whole of the judgments of Sir Henry Duke and Mr. Justice Horridge in this case are very instructive and should be very helpful in cases where corporations are involved in accidents, where, as was said in Collins v. The London General Omnibus Company, "A claim ... was as near a moral certainty as is possible." This last observation is worth noting. In the Collins case, the Birmingham Motor Omnibus case and the Hopper case, the reports were made at a time when no litigation was actually threatened; no claim had been made. In the Birmingham Motor Omnibus case, Bucknill, J., on appeal from the Master, had drawn a line at the date when the defendants first received a letter of claim, making documents before that date not privileged, and after it privileged. But this course was not followed by the Court of Appeal. Buckley, L.J., said, "This might in some cases, but is not I think in this case, an appropriate line of demarcation."

A recent case, The City of Baroda, may at first sight appear to be at variance with the principles laid down in the Hopper case and the authorities therein relied on, but a careful reading demonstrates that no doubt is cast upon the soundness of the fundamental principle set out in the Birmingham Motor Omnibus case.

The distinguishing factor in the City of Baroda case seems to have been that the court was not satisfied from the nature of the affidavit and of the documents themselves, that they had come into existence for the purpose of being communicated to the defendants' solicitors. It is clear, therefore, that the final and conclusive test is still that laid down by Lord Justice Buckley which has been already referred to.

The principle established by the Hopper case, and cases therein

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referred to, has since been followed in Alberta in the case of Stephenson v. E. D. & B. C. Railway."

A further point, as to which there has sometimes been doubt, is in connection with reports which, while containing information for the solicitor in connection with threatened or anticipated litigation, also contains information which is clearly intended for other purposes. In the case of Swaisland v. G. T. R. Co., Mr. Justice Middleton inter alia decided that the claim for privileges was not sufficiently made out unless it stated that the reports were made solely" for the information of the solicitors.

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It would seem to be rather extraordinary if the privilege attaching to the communications between solicitor and client which has been so jealously guarded by the Courts, could be destroyed in this way, and any doubts in connection with the matter seem to have been removed by the decision in the case of Birmingham and MidLand Motor Omnibus Co. v. London & North Western Railway Company, above referred to, where it was decided that reports need not have been obtained "solely" or "merely" or "primarily" for the solicitor.

In conclusion, it may be well to emphasize the remarks of Lord Justice Hamilton in the Birmingham Motor Omnibus case, above referred to. He points out that the claim for privilege in the affidavit is not necessarily conclusive, and that the accuracy of the affidavit and of the terms in which it claims the privilege, may be tested by means of the documents themselves. Practitioners would do well to bear in mind the following sound advice,-" It is dangerous to rely on these artificial creations. Claiming privilege in an affidavit of documents is not like pronouncing a spell, which, once uttered, makes all the documents taboo. The draftsman should draw each affidavit with reference to the actual facts of the case and bearing them in mind. The selecton of well-tried formulæ from a precedent book only leads to that inconsiderate swearing which is the bane of the practice as to discovery."

Calgary.

D. W. CLAPPERTON.

(1926) 2 D.L.R. 680.

5 D.L.R. 750.

AMERICAN LAW SCHOOLS.

For the benefit of those of our readers who did not hear the address of Dr. Everett Fraser, Dean of the Faculty of Law of the University of Minnesota, delivered at the Annual Meeting of the Canadian Bar Association in September last, the REVIEW quotes certain passages from it containing much interesting information concerning American Law Schools and the system of instruction pursued therein:

"Almost all candidates for admission to the Bar now take a law school course. The number who prepare in law offices is negligible, and if all the law schools were of high standard, little harm would follow from low standards for admission to the Bar itself, but unfortunately this is not the case. Of the 167 law schools only 62 are now qualified to be members of the Association of American Law Schools. The standards for admission to this Association are substantially those approved by the American Bar Association. In fact the Bar Association approved the standards which the Law School Association had already set. Most of the other 103 law schools are part time or evening schools.

"The evolution of the part time school is interesting. When preparation for the Bar was generally made in law offices, benevolent lawyers gave lectures to groups of these students after office hours. These lectures were of great benefit in the way of systematic instruction, and made for a better Bar so long as they were restricted to students in law offices. But they were soon opened to persons in other occupations. The requirements for admission to the Bar did not call for apprenticeship and usually accepted a period of study in a law school without specifying how much of the candidate's time should actually be spent in the study of law. The laws of the several States liberally permit three or more persons to organize a school or college of any sort and to confer degrees. Taking advantage of these conditions, schools were organized which permitted persons to study law whose day was spent in other occupations. Teachers, clerks, carpenters, plumbers, barbers and even politicians could study law in their evening hours. Low requirements for admission to the Bar increased the numbers. The schools adopted the standards set by the Bar, either in the honest belief that they were sufficient or in order to secure larger profits. Approximately two-thirds of the 40,000 law school students are studying in this type of school. These schools

are increasing from year to year-five new ones were opened last year. In the twin cities, Minneapolis and St. Paul, there are five evening law schools with nearly 1,000 students.

"This easy way of access to the Bar accounts in large measure for the enormous increase in the number of law school students in the last few years. The approach to the medical, dental and other professions is through the University schools, which have high standards for admission and course. A medical student must now spend seven years of full time study after high school to qualify as a practitioner, a dental student five years or more. But the candidate for the Bar need spend only his evening hours in the study of law for three years, or in a few states four years, to become a lawyer. Those who aspire to a profession and have not the resources, patience and industry to prepare for the other professions study law. During the period 1900-1925 while law schools increased from 102 to 167 and law school students from 12,500 to 40,000, medical schools decreased from 160 to 79 and medical school students from 25,000 to about 10,000. The American Medical Association has been more successful in raising standards than the American Bar Association."

"The schools which are members of the Association of American Law Schools present a striking contrast. These schools in Universities supported by liberal endowments or by State appropriations have steadily struggled for the advancement of legal education. Although the States have failed to set satisfactory standards for admission to the Bar, these schools have on their own motion required high attainments of their students. The minimum requirement for admission is two years of college work. Six schools require three years and six others a college degree. It is probable that at no distant time, all the stronger University law schools will be postgraduate schools. The law course occupies three years, and several schools have in recent years organized post-graduate courses of one year which are growing in favour. These schools make exacting demands of their students, and their courses are regarded as the most difficult in the Universities. Even in schools which require a degree. for admission, a considerable proportion of the students, as high as one-third, never get beyond the first year.

"Law school faculties discourage work by their students in law offices during school terms. They believe that law students do not obtain anything of value from attendance in law offices while undergraduates, and that better results will be had if they give their undivided attention to their school work. This observation does not apply to attendance during vacation; but a few months attendance

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