Duty of Confidentiality

Question 1

Rule Statement: Duty of Confidentiality

Answer 1

A lawyer has a duty of confidentiality to their clients under which a lawyer cannot, without the client’s informed consent, reveal any information relating to the representation of a client, use confidential information not generally known to the client’s disadvantage, allow unauthorized access to confidential information, or inadvertently disclose the client’s confidential information.

Question 2

Exceptions to the Duty of Confidentiality

Answer 2

1. Consent or Implied Authority
2. Prevent Death or Substantial Bodily Harm

CA:
- Disclosure must be to prevent a criminal act that is likely to result in death or substantial bodily harm.
- Lawyer must try and make a good faith effort to stop client’s criminal act.
- Lawyer must inform the client of their ability or decision to reveal the information.

3. Prevent or Rectify Substantial Financial Loss (if the client is using or has used the lawyer’s services in furtherance of the crime or fraud) (NOT CA)
4. Defend Self or Establish Claim Against Client
5. Obtain Legal Ethics Advice (NOT CA)
6. Address Conflict Resulting from Organizational Change (NOT IN CA)
7. Comply with Court Order or Law (but try to challenge it (CA: Other ethics rules do not supersede duty of confidentiality)

NOTE: If an exception applies, the lawyer MAY disclose a client’s confidential information only to the extent reasonably necessary to meet each exception.

Question 3

Attorney-Client Privilege Definition

Answer 3

The attorney-client privilege allows a client to refuse to testify and prevent their lawyer from testifying before a court about confidential communications between them or their respective agents.

The privilege applies only to communications that pertain to legal services.

The privilege attaches to consultations with prospective clients and continues after the representation ends. (CA: privilege terminates after the client’s death when the client’s estate is settled and the personal representative is discharged)

Question 4

Attorney-Client Privilege v. Duty of Confidentiality

Answer 4

The attorney-client privilege is much narrower than the duty of confidentiality:
- ACP is an exclusionary rule of evidence that prevents the lawyer or client from being compelled to testify about a privileged communications. The duty of confidentiality is an ethical rule and prevents all types of disclosure, both inside and outside the courtroom.

• ACP only covers confidential communications between the lawyer and client. The duty of confidentiality covers all types of information relating to the representation, from any source.

Question 5

Exceptions to ACP

Answer 5

ACP dose not apply when:
- Client asks lawyer to enable or aid anyone to commit a future crime or fraud

• To a communication that is relevant to an issue of breach of the duties arising out of the attorney-client relationship
• Civil litigation between multiple persons who were formerly the joint clients of the lawyer
• The lawyer is called to give evidence about the competency or intention of a client who has attempted to dispose of property by will or inter vivos transfer

ADDITIONAL CA EXCEPTION:
When disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in a person’s substantial bodily injury or death