Executive Summary: Key Legal and Evidentiary Issues

• Scope and limits of solicitor-client privilege where a law firm sues its former partner over alleged misappropriation of client funds and misuse of client files
• Whether the “circle of privilege” extends to the former law partner and their respective litigation counsel in a dispute between a firm and a departing lawyer
• Appropriateness of a blanket refusal to produce any documents on the basis of solicitor-client privilege, including bank records and communications with third parties
• Relevance and proportionality of wide-ranging documentary disclosure (emails, bank records, Legal Aid portal, Quebec authorizations, communications with other firms and staff) to alleged covert diversion of client monies
• Distinction between privileged and merely confidential information, particularly as it relates to billing records, bank statements, and financial flows of client funds
• Availability of safeguards (deemed undertaking, redactions, anonymization, sealing orders) to permit production of sensitive materials without waiving solicitor-client privilege

Background and relationships between the parties

The dispute arises from a falling-out between a criminal defence law firm, Will Murray & Associates Criminal Defence Professional Corporation (the Firm), and a former partner and employee, criminal lawyer Nader Fakih. The Firm, formerly known as Murray Fakih Criminal Defence Professional Corporation, operates as a criminal defence practice. Mr. Fakih joined the Firm as an associate in 2020, became a partner in 2023, and left at the end of August 2024. During his time at the Firm, he held a senior and largely independent role. The litigation is a civil action in the Ontario Superior Court of Justice in which the Firm sues its former partner for alleged misconduct relating to client funds and case handling while he was still with the practice. The motion decided in this ruling concerns whether specific categories of documents requested by the Firm must be produced by Mr. Fakih, or whether they are protected from disclosure by solicitor-client privilege.

Alleged misconduct and financial irregularities

In the summer of 2024, the Firm undertook an internal investigation into Mr. Fakih’s billing and accounting practices. That investigation revealed a number of serious concerns. First, his billed work for 2024 was significantly lower than in 2022 and 2023, which he attributed to being slow in recording dockets. More troubling were alleged instances where he received client funds directly into his personal bank account, including electronic transfers and cheques that were meant to cover legal fees, disbursements, and HST payable to the Firm. The Firm’s evidence included an email in which Mr. Fakih wrote, “These peasants owe me money still so I’m taking their bail money,” which the court treated as highly revealing of his attitude toward client funds. According to the Firm, he advised at least one client to pay via e-transfer to a bank account associated with his personal Hotmail address, and in another instance he asked a client to meet in person and pay him thousands of dollars in cash despite the client’s preference to pay electronically. The Firm also alleges that he received client bail monies personally, rather than ensuring that those funds were returned to the clients entitled to them or, where appropriate, properly invoiced and routed through the Firm’s accounts. It is further alleged that he attempted to retain client funds he was not entitled to keep, including cash seized and later released by police that was never properly billed or processed through the Firm.

Work outside permitted practice areas and diversion of matters

Beyond alleged financial improprieties, the Firm claims that Mr. Fakih improperly handled matters outside the practice areas the Firm was authorized and insured to provide. Specifically, he is said to have provided legal services in tort and personal injury civil litigation under the Firm’s name even though the Firm’s liability insurance and Law Society of Ontario status did not allow it to undertake that kind of work. The Firm further alleges that, shortly before his departure in August 2024, he directed funds from the settlement of a tort/personal injury file to another law firm, Aham Law/Aham Law Professional Corporation (associated with Ahmad Hamzeh). This redirection of settlement proceeds to another firm, just days before he left, is one of the grounds for seeking disclosure of his communications with that outside practice and with former Firm staff.

Discovery efforts and the contested document requests

The Firm issued its Statement of Claim in December 2024. In February 2025, its counsel proposed a Discovery Plan calling for broad disclosure by Mr. Fakih. The requested materials included emails with clients from his personal Hotmail account, his personal bank records, communications with the law firm to which he allegedly directed client funds, documents from his Legal Aid Ontario portal (including correspondence and billing records), and his exchanges with the Barreau du Québec concerning special authorizations for practice in that jurisdiction. The Firm also sought messages with two former employees, as well as all correspondence and documents relating to certain identified clients. In response, Mr. Fakih refused to produce any of these documents, taking the position that they were all shielded by solicitor-client privilege. Despite asserting that he was not refusing to produce non-privileged records, he in fact produced neither an affidavit of documents nor any Schedule A productions. He also asserted that his own litigation counsel in this civil action could not review the documents initially disclosed by the Firm, again invoking client privilege as a barrier even to his lawyer’s access.

Solicitor-client privilege and the circle of privilege

The associate justice set out a detailed overview of solicitor-client privilege, reaffirming that it is a fundamental tenet of the legal system, recognized as a “fundamental civil and legal right” and as a principle of fundamental justice under section 7 of the Charter. The court reviewed the traditional Wigmore criteria and the modern formulations in Solosky and Descôteaux, emphasizing that privilege arises only where there is a confidential communication between lawyer and client made for the purpose of seeking or giving legal advice. The court acknowledged that the privilege is near-absolute and central to the administration of justice but pointed out that it is not unlimited and does not attach to all lawyer-related documents or all confidential information. The decision then focused on the concept of the “circle of privilege” – the group of people who may see privileged communications without destroying privilege. Drawing on authorities such as R. v. Basi, Harkat and, more directly, J.D. Buote Professional Corporation v. McLeod, the court held that in disputes involving lawyers and their own clients or their former firms, it is sometimes necessary for privileged information to be used and shared within a limited circle so that the litigation can proceed. In particular, where a law firm sues a former partner over matters tied to client files, the firm’s lawyers and their litigation counsel, as well as the former partner and his litigation counsel, can all fall within this circle. The court noted that when both parties previously worked together at the Firm, they routinely shared client information amongst themselves without any need for waivers from individual clients. The fact that they are now adverse in civil proceedings does not transform each into a stranger for privilege purposes. Accordingly, the judge rejected the argument that allowing production between these parties would amount to a “blanket waiver” of privilege belonging to hundreds of unsuspecting clients. Instead, the court characterized the issue as one of managing disclosure within an existing circle of privilege.

Why this is not a waiver of privilege

The court closely examined authorities relied upon by the defence, including Ontario (Public Safety and Security) v. Criminal Lawyers’ Association and decisions like O’Donohue v. Owens and Kupferstein v. Gottlieb, Hoffman & Kumer. Those cases underscored that solicitor-client privilege belongs to the client, not the lawyer, and that it cannot be destroyed for the benefit of someone with whom the client has “no quarrel.” However, the judge distinguished those decisions on the facts. In Kupferstein, for example, the plaintiff seeking access to files had never had a solicitor-client relationship with the clients whose files were at issue, making them true third parties. By contrast, in this case, the Firm and Mr. Fakih jointly served the clients and had both historically been entitled to access their files. The dissolution of the partnership and subsequent lawsuit did not retroactively create a barrier where none existed before. Relying on cases such as Pomer v. Zeppieri, Lazare v. Bancroft, and Weary v. Ramos, the judge concluded that the plaintiff Firm is effectively in the same position as a former partner in an accounting or fee dispute: it remains entitled to see files that both sides could previously review, including documents created or accumulated even after the end of the formal partnership where that access is reasonably incidental to resolving the dispute. The court also reasoned that there is an implied understanding that associates, partners, and even non-lawyer staff such as bookkeepers may access billing and financial information relating to client matters. Taken together, these principles led the judge to hold that ordering production between the Firm and Mr. Fakih, and allowing their litigation counsel to review the documents, does not waive or destroy solicitor-client privilege; it instead operates within the existing circle of privilege.

Additional safeguards to protect client interests

To address potential concerns about misuse or broader disclosure of sensitive materials, the court noted several safeguards that apply in the ordinary course of litigation. First, all parties and counsel are bound by the deemed undertaking rule in Rule 30.1 of the Rules of Civil Procedure, which restricts the use of discovery materials to the specific proceeding. Second, the court highlighted that counsel are regulated by the Law Society of Ontario and owe ethical duties to protect privileged and confidential information. Third, in appropriate circumstances, counsel may redact client-identifying information, anonymize documents, or seek orders that particular court filings be sealed. The Firm, for instance, had recently provided further disclosure to the defence with all client-identifying particulars redacted and indicated a willingness to agree to further reasonable protective measures. The judge also emphasized that lawyers should avoid including more privileged information in pleadings than strictly necessary, even where a sealing order or other confidentiality measure is in place. These safeguards collectively reinforced the conclusion that production obligations can be met without sacrificing privilege or exposing client information beyond what is reasonably necessary.

Limits of privilege and non-privileged documents

The decision stresses an important distinction between information that is confidential and information that is privileged. While all privileged material is confidential, not all confidential material qualifies as privileged. Solicitor-client privilege attaches only to communications that meet the classic criteria: they must be between lawyer and client, confidential in nature, and directed to the seeking or giving of legal advice. Consequently, items like personal bank records, financial flows, and certain administrative or transactional documents may be relevant yet not privileged, even if they are sensitive. The Firm’s motion targeted, among other things, personal bank statements for all of Mr. Fakih’s accounts from July 16, 2020, onward, on the basis that he allegedly used those accounts to receive client payments, cash, and other funds that ought to have flowed through the Firm. The court held that resistance to production must be grounded in true privilege, not merely in concerns about confidentiality. Billing records and financial documents may be presumptively privileged in some contexts, especially where they would reveal the nature of legal advice, but that presumption can be rebutted where the material does not disclose the substance of any privileged communication. The court therefore rejected the defendant’s blanket refusal and found that at least some—indeed many—of the requested documents were plainly not protected by solicitor-client privilege.

Relevance, proportionality, and the breadth of disclosure

The court also addressed the defendant’s argument that the Firm’s document request amounted to a fishing expedition and, in any event, sought irrelevant material. Under Rule 30.02, documents must be relevant to a matter in issue, and relevance is assessed against the pleadings; under Rule 29.2.03, proportionality factors such as time, expense, prejudice, case progress, and alternative availability also apply. The judge concluded that the Firm’s requests were grounded squarely in its pleaded allegations. The claims focus on client funds allegedly diverted to the defendant personally or to related entities, including bail money, cash payments, e-transfers to personal accounts, Legal Aid-related funds, and settlement monies directed to another firm. In that context, records of communications with clients and third parties, personal bank statements, Legal Aid portal data, and correspondence with the Barreau du Québec and Aham Law were all logically connected to determining what funds were received, how they were handled, and whether they should have gone through the Firm. Far from being a fishing expedition, the document categories were tailored to uncover the extent, timing, and destinations of allegedly misdirected client monies. The defendant’s own admissions—that he deposited client funds into his personal accounts on at least two occasions and acknowledged he should not have done so—reinforced the reasonableness and necessity of looking carefully at those financial records.

Outcome of the motion and implications

In the result, the court granted the Firm’s motion in full. The associate justice ordered that the defendant serve a sworn or affirmed affidavit of documents and produce the materials requested in the Firm’s Notice of Motion and its attached Schedule A, within 90 days or within such other time as counsel may agree. This includes emails to and from his Hotmail account involving the Firm and its (or his) clients, all documentation from his Legal Aid Ontario portal, correspondence with the Barreau du Québec concerning special authorizations, communications with Aham Law and former Firm employees, personal banking records from mid-2020 onward, and all documents related to specific clients identified in the Firm’s affidavit of documents. The judge encouraged counsel to cooperate in crafting any additional protective measures needed to shield privileged information, such as redactions, anonymization, or sealing orders for specific filings. However, the court made clear that reliance on solicitor-client privilege cannot be used as a blanket shield to avoid discovery obligations where both parties fall within the circle of privilege and where many of the requested records are not privileged at all. As to costs and monetary relief, this decision deals only with the discovery motion and does not fix any damages, costs, or other amounts in favour of either party. The Firm, as the successful party on the motion, is invited to seek costs through short written submissions if the parties cannot agree, but no specific dollar figure is set in the reasons. Accordingly, while the Firm clearly succeeds on this procedural motion, the total monetary award, including any eventual costs or damages in its favour, cannot yet be determined from this decision.