Class 3 - Topic 2: Confidentiality

Question 1

Confidentiality: The Rule

Answer 1

3.3-1 A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless

(a) expressly or impliedly authorized by the client;
(b) required by law or by order of a tribunal of competent jurisdiction to do so;
(c) required to provide the information to the Law Society; or
(d) otherwise permitted by rules 3.3-2 to 3.3-6.

Question 2

Commentary to 3.3-1 (Confidentiality Rule)

[1] A lawyer cannot render effective professional service to the client unless…

Answer 2

…there is full and unreserved communication between them. At the same time, the client must feel completely secure and entitled to proceed on the basis that, without any express request or stipulation on the client’s part, matters disclosed to or discussed with the lawyer will be held in strict confidence.

Question 3

Commentary to 3.3-1 (Confidentiality Rule)

[2] This rule must be distinguished from…

Answer 3

…the evidentiary rule of lawyer and client privilege, which is also a constitutionally protected right, concerning oral or documentary communications passing between the client and the lawyer. The ethical rule is wider and applies without regard to the nature or source of the information or the fact that others may share the knowledge.

Question 4

Commentary to 3.3-1 (Confidentiality Rule)

[3] A lawyer owes the duty of confidentiality to every client without exception and whether or not the client is a continuing or casual client. …

Answer 4

… The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.

Question 5

Commentary to 3.3-1 (Confidentiality Rule)

[4] A lawyer also owes a duty of confidentiality to anyone seeking advice or assistance on a matter invoking a lawyer’s professional knowledge, although the lawyer may not render an account or agree to represent that person. …

Answer 5

… A solicitor and client relationship is often established without formality. A lawyer should be cautious in accepting confidential information on an informal or preliminary basis, since possession of the information may prevent the lawyer from subsequently acting for another party in the same or a related matter. (See Section 3.4 Conflicts.)

Question 6

Commentary to 3.3-1 (Confidentiality Rule)

[5] Generally, unless the nature of the matter requires such disclosure, a lawyer should not disclose having been:

Answer 6

(a) retained by a person about a particular matter; or
(b) consulted by a person about a particular matter, whether or not the lawyer-client relationship has been established between them.

Question 7

Commentary to 3.3-1 (Confidentiality Rule)

[6] A lawyer should take care to avoid disclosure to one client of confidential information concerning or received from…

Answer 7

… another client and should decline employment that might require such disclosure.

Question 8

Commentary to 3.3-1 (Confidentiality Rule)

[7] Sole practitioners who practise in association with other licensees in cost-sharing, space- sharing or other arrangements should be mindful of the risk of advertent or inadvertent disclosure of confidential information, even if the lawyers institute systems and procedures that are designed to insulate their respective practices. …

Answer 8

… The issue may be heightened if a lawyer in the association represents a client on the other side of a dispute with the client of another licensee in the association. Apart from conflict of interest issues such a situation may raise, the risk of such disclosure may depend on the extent to which the licensees’ practices are integrated, physically and administratively, in the association.

Question 9

Commentary to 3.3-1 (Confidentiality Rule)

[8] A lawyer should avoid indiscreet conversations, even with…

Answer 9

…the lawyer’s spouse or family, about a client’s affairs and should shun any gossip about such things even though the client is not named or otherwise identified. Similarly, a lawyer should not repeat any gossip or information about the client’s business or affairs that is overheard or recounted to the lawyer. Apart altogether from ethical considerations or questions of good taste, indiscreet shop talk between lawyers, if overheard by third parties able to identify the matter being discussed, could result in prejudice to the client. Moreover, the respect of the listener for lawyers and the legal profession will probably be lessened.

Question 10

Commentary to 3.3-1 (Confidentiality Rule)

[8.1] Although the rule may not apply to…

Answer 10

…facts that are public knowledge, nevertheless, the lawyer should guard against participating in or commenting on speculation concerning the client’s affairs or business.

Question 11

Commentary to 3.3-1 (Confidentiality Rule)

[11.1] The fiduciary relationship between a lawyer and a client forbids the lawyer or a third person from benefiting from the lawyer’s use of a client’s confidential information. …

Answer 11

… If a lawyer engages in literary works, such as a memoir or autobiography, the lawyer is required to obtain the client’s or former client’s consent before disclosing confidential information.

Question 12

Confidentiality: The Exceptions

[9] In some situations, the authority of the client to disclose may be inferred. For example, …

Answer 12

… some disclosure may be necessary in court proceedings, in a pleading or other court document. Also, it is implied that a lawyer may, unless the client directs otherwise, disclose the client’s affairs to partners and associates in the law firm and, to the extent necessary, to administrative staff and to others whose services are used by the lawyer. But this implied authority to disclose places the lawyer under a duty to impress upon associates, employees, and students and other licensees engaged under contract with the lawyer or with the firm of the lawyer the importance of non- disclosure (both during their employment and afterwards) and requires the lawyer to take reasonable care to prevent their disclosing or using any information that the lawyer is bound to keep in confidence.

Question 13

Confidentiality: The Exceptions

[10] The client’s authority for the lawyer to disclose confidential information to the extent necessary to protect the client’s interest may also be inferred in some situations where the lawyer is taking action on behalf of the person lacking capacity to protect the person until a legal representative can be appointed. In determining whether a lawyer may disclose such information, …

Answer 13

…the lawyer should consider all circumstances, including the reasonableness of the lawyer’s belief that the person lacks capacity, the potential harm that may come to the client if no action is taken, and any instructions the client may have given to the lawyer when capable of giving instructions about the authority to disclose information. Similar considerations apply to confidential information given to the lawyer by a person who lacks the capacity to become a client but nevertheless requires protection.

Question 14

Confidentiality: The Exceptions

[11] A lawyer may have an obligation to disclose information under rules 5.5-2, 5.5-3 and 5.6-3 (Security of Court Facilities). …

Answer 14

… If client information is involved in those situations, the lawyer should be guided by the provisions of this rule.

Question 15

Confidentiality: The Exceptions

[11.1] The fiduciary relationship between a lawyer and a client forbids the lawyer or a third person from benefiting from the lawyer’s use of a client’s confidential information. …

Answer 15

… If a lawyer engages in literary works, such as a memoir or autobiography, the lawyer is required to obtain the client’s or former client’s consent before disclosing confidential information.

Question 16

Justified and Permitted Disclosure

Answer 16

3.3-1.1 When required by law or by order of a tribunal of competent jurisdiction, a lawyer shall disclose confidential information, but the lawyer shall not disclose more information than is required.

3.3-2 [FLSC - not in use]

3.3-3 A lawyer may disclose confidential information, but must not disclose more information than is required, when the lawyer believes on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm.

Question 17

Justified and Permitted Disclosure - Commentary

[1] Confidentiality and loyalty are fundamental to the relationship between a lawyer and a client because legal advice cannot be given and justice cannot be done unless clients have a large measure of freedom to discuss their affairs with their lawyers. However, …

Answer 17

…in some very exceptional situations identified in this rule, disclosure without the client’s permission might be warranted because the lawyer is satisfied that truly serious harm of the types identified is imminent and cannot otherwise be prevented. These situations will be extremely rare.

Question 18

Justified and Permitted Disclosure - Commentary

[2] The Supreme Court of Canada has considered the meaning of the words “serious bodily harm” in certain contexts, which may inform a lawyer in assessing whether disclosure of confidential information is warranted. …

Answer 18

In Smith v. Jones, [1999] 1 S.C.R. 455 at paragraph 83, the Court observed that serious psychological harm may constitute serious bodily harm if it substantially interferes with the health or well-being of the individual.

Question 19

Justified and Permitted Disclosure - Commentary

[3] In assessing whether disclosure of confidential information is justified to prevent death or serious bodily harm, a lawyer should consider a number of factors, including …

Answer 19

(a) the likelihood that the potential injury will occur and its imminence;
(b) the apparent absence of any other feasible way to prevent the potential injury; and
(c) the circumstances under which the lawyer acquired the information of the client’s intent or prospective course of action.

Question 20

Justified and Permitted Disclosure - Commentary

[4] How and when disclosure should be made under this rule will depend upon the circumstances. …

Answer 20

A lawyer who believes that disclosure may be warranted should seek legal advice. When practicable, a judicial order may be sought for disclosure.

Question 21

Justified and Permitted Disclosure - Commentary

[5] If confidential information is disclosed under rule 3.3-3, the lawyer should prepare a written note as soon as possible, which should include:

Answer 21

(a) the date and time of the communication in which the disclosure is made;
(b) the grounds in support of the lawyer’s decision to communicate the information, including the harm intended to be prevented, the identity of the person who prompted communication of the information as well as the identity of the person or group of persons exposed to the harm; and
(c) the content of the communication, the method of communication used and the identity of the person to whom the communication was made.

Question 22

Justified and Permitted Disclosure - Commentary

[5.1] A lawyer employed or retained to act for an organization, including a corporation, confronts a difficult problem about confidentiality when he or she becomes aware that the organization may commit a dishonest, fraudulent, criminal, or illegal act. This problem is sometimes described as the problem of whether the lawyer should “blow the whistle” on their employer or client. Although…

Answer 22

…the rules make it clear that the lawyer shall not knowingly assist or encourage any dishonesty, fraud, crime, or illegal conduct (rule 3.2-7) and provide a rule for how a lawyer should respond to conduct by an organization that was, is or may be dishonest, fraudulent, criminal, or illegal (rule 3.2-8), it does not follow that the lawyer should disclose to the appropriate authorities an employer’s or client’s proposed misconduct. Rather, the general rule, as set out above, is that the lawyer shall hold the client’s information in strict confidence, and this general rule is subject to only a few exceptions. Assuming the exceptions do not apply, there are, however, several steps that a lawyer should take when confronted with the difficult problem of proposed misconduct by an organization. The lawyer should recognise that their duties are owed to the organization and not to the officers, employees, or agents of the organization (rule 3.2-3)) and the lawyer should comply with rule 3.2-8, which sets out the steps the lawyer should take in response to proposed, past or continuing misconduct by the organization.

Question 23

3.3-4 If it is alleged that a lawyer or the lawyer’s associates or employees
(a) have committed a criminal offence involving a client’s affairs;
(b) are civilly liable with respect to a matter involving a client’s affairs; (c) have committed acts of professional negligence; or
(d) have engaged in acts of professional misconduct or conduct unbecoming a lawyer,

Answer 23

the lawyer may disclose confidential information in order to defend against the allegations, but shall not disclose more information than is required.

Question 24

3.3-5 A lawyer may disclose confidential information in order to establish or collect the lawyer’s fees, but..

Answer 24

…the lawyer shall not disclose more information than is required.

Question 25

3.3-6 A lawyer may disclose confidential information to another lawyer to…

Answer 25

…secure legal advice about the lawyer’s proposed conduct.

Question 26

3.3-7 A lawyer may disclose confidential information to the extent reasonably necessary to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a law firm, …

Answer 26

… but only if the information disclosed does not compromise the solicitor-client privilege or otherwise prejudice the client.

Question 27

[1] As a matter related to clients’ interests in maintaining a relationship with counsel of choice and protecting client confidences, lawyers in different firms may need to disclose information to each other to detect and resolve conflicts of interest, such as when…

Answer 27

…a lawyer is considering an association with another firm, two or more firms are considering a merger, or a lawyer is considering the purchase of a law practice.

Question 28

Duty of Confidentiality v Lawyer-Client Privilege

Answer 28

Duty of Confidentiality:
- a duty of lawyers to clients
- doctrine of legal ethics/RPCs
- broader, “applies w/o regard to the nature or source of the information or the fact that others may share the knowledge.”

Lawyer-Client Privilege
- Usually used vs. third party
- doctrine of evidence law, civil & crim procedure
- Does not necessarily apply in those circumstances.

Question 29

The 8 Confidentiality Exceptions

Client info can be divulged if, and only to the extent that, doing so is required:

Answer 29

1. and “expressly or impliedly authorized by the client” (RPC 3.3-1(a))
2. “to provide the information to the Law Society” (RPC 3.3-1(c))
3. to get advice from another lawyer re proposed conduct (RPC 3.3-6)
4. to “detect and resolve conflicts of interest” arising from changes of employment/partnership, IF no
   compromise of solicitor-client privilege AND no other prejudice to client. (RPC 3.3-7)
5. to defend against serious allegations vs. lawyer/firm (RPC 3.3-4)
6. to collect fees (RPC 3.3-5)
7. if belief “on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm.” (RPC 3.3-3)
8. “by law or by order of a tribunal of competent jurisdiction” (RPC 3.3-1(a))

Question 30

Public Safety Exception to Confidentiality & Privilege: Smith v Jones - 4 Part Test

Answer 30

• Clarity of Threat
• Seriousness of Harm
• Imminence of Threat
• Lack of Less Invasive Alternative