A Lawyer's Duty of Confidentiality
Lawyers are bound to hold in strict confidential all information obtained from a client, whether obtained directly from the client or from some other source. Except in certain limited circumstances, the lawyer is prohibited from revealing this information in any context including to the government or tax authorities in an audit and not just in the circumstances of ongoing litigation. This duty is based on the reasoning that otherwise, the client may not fully disclose all relevant information to his or her lawyer, and consequently, the lawyers advice may not be correct.
The general rule regarding a lawyers duty of confidentiality in Ontario is provided for in subrule 2.03(1) of the Rules of Professional Conduct, which states as follows.
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 expressly or impliedly authorized by the client or required by law to do so.
The duty of confidentiality applies to not only confidential communications between the client and the lawyer for the purpose of giving legal advice, but also to all information concerning the clients affairs that are communicated to the lawyer by or on behalf of the client, including any information acquired from any third parties during the course of and in furtherance of the retainer. This includes information that may not have any relevance to the matters upon which the lawyer was retained. As this duty extends to all information during the course of the consultation or retainer, the lawyer should not reveal that he or she has been retained (or the clients identity), unless the circumstances require otherwise, or the client has given the required permission.
This duty extends to those employed or controlled under the lawyer, including associates and support staff. Accordingly, the lawyer is responsible for ensuring that all persons who may access the lawyers files keep that information confidential.
Also, this duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, regardless of the reason for that termination. It also extends past the death of the client, with the same force and effect.
Exceptions to Lawyers Duty of Confidentiality
While a lawyer holds a duty to hold in confidence all information concerning the business and affairs of a client, there do exist some exceptions. Most notably, if compelled by statute or ordered by a court, a lawyer must disclose confidential communications.
Further, in order to defend himself or herself, disclosure of confidential information by a lawyer is justified in the following circumstances:
- the lawyer has been accused of criminal conduct with respect to the clients affairs;
- an issue of civil liability in dealing with the clients affairs has been raised;
- allegations of malpractice or misconduct; and
- where the lawyer is attempting to establish or collect fees.
In each of the above situations where disclosure is justified, the lawyer may only disclose to the extent necessary to achieve the permitted purpose.
In addition to the above, disclosure of confidential communications is permitted where a lawyer believes, on reasonable grounds, that there is an imminent risk to an identifiable person or group of persons of death or series bodily harm. This is provided for in subrule 2.03(3) of the Rules of Professional Conduct, which states:
Where a lawyer believes upon reasonable grounds that there is an imminent risk to an identifiable person or group of death or serious bodily harm, including serious psychological harm that substantially interferes with health or well-being, the lawyer may disclose, pursuant to judicial order where practicable, confidential information where it is necessary to do so in order to prevent the death or harm, but shall not disclose more information than is required.
For more information on the lawyers duty of confidentiality in Ontario , we encourage you to contact the Law Society of Upper Canada at 1-800-668-7380.
For further information on the differences between a lawyer's advice, and the non-privileged advice of other advisors, like accountants, auditors, or other non-lawyer consultants, please follow the link below.