Solictor-Client Privilege refers to a Lawyer's Duty of Confidentiality. Under that Duty, 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 of the Law Society of Ontario, which provides 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.
Solicitor-Client Privilege, and 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 client's 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 lawyer's retainer. For example, 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, clients can assume that the lawyer will not reveal that he or she has been retained by the client, and will not reveal the identify of the client, unless the circumstances require otherwise, or the client has given the required permission. Exceptions may exist, of course, where the nature of the retainer has been made public (e.g., through the filing of public court documents, like Notices of Appeal).
This duty also survives the professional relationship between lawyer and client 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 Solicitor-Client Priviledge & the 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 are some exceptions to this rule - most notably, if compelled by statute or ordered by a court, a lawyer must disclose confidential communications.
A lawyer is also permitted to disclose confidential information in order to defend himself or herself, 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 Solicitor-Client Privilege and 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 click here.