Talk to Me

By Susan Irwin, Executive Director / Lawyer, Rural Legal Services

You can talk to me.

What you tell me stays with me.

In fact, as a lawyer, I have very little choice in the matter. Every lawyer in Ontario is governed by the Rules of Professional Conduct as set down and enforced by the Law Society of Upper Canada. One of those rules deals with the confidentiality of information received from a client. If a lawyer fails to abide by that rule or any of the other rules, he or she can be punished with sanctions ranging from being reprimanded to being suspended or disbarred.

If a client is to receive proper advice and representation, it is essential that the lawyer be fully informed. Obviously, this isn’t going to happen unless the client has complete confidence that the lawyer will hold the matters discussed in the strictest confidence.

Except in some very special circumstances, a lawyer may not disclose the information received from a client without that client’s consent. It is recognized, however, that the consent to disclose information is often “implied”. The lawyer may have to disclose information to other lawyers in the office, and support staff, so that the client’s file can be opened and managed. All lawyers in a Community Legal Clinic, or law firm, are bound by the Rules of Professional Conduct, and are similarly responsible to ensure that there is a strict confidentiality policy for staff members that will apply even after their employment ends.

Information can also be disclosed when a lawyer acts on behalf of a client in dealing with others, such as when drafting pleadings, while trying to negotiate a settlement, or while arguing a case before a Court or Tribunal. This implied consent to disclosure is fairly broad providing that the lawyer is acting in the client’s best interests and in accordance with the terms of the agreement or “retainer” to hire the lawyer.

Unless the release of information fits within the “implied” consent exception or the client directly consents, client information stays with the lawyer. Communications between a client and his lawyer are not only confidential, they are also “privileged”. The other party in a dispute or transaction, or the police in a criminal matter, generally have no right to access those communications, such as letters or emails, without a Court Order, and those Orders are rare. The right not to have to disclose information, referred to as the “solicitor-client privilege”, is one of those old Common Law traditions that are essential to the smooth functioning of our legal system, as was affirmed by the Supreme Court of Canada as recently as July 2008. The privacy required to protect solicitor-client communications is one reason why lawyers can demand to see their clients alone without any police officer or other official being able to overhear their discussions.

Like most things involving the law and lawyers, things can still get complicated when talking about confidentiality and solicitor-client privilege. For instance, if you tell your lawyer that you have murdered your boss, then there is no doubt that the information is confidential. On the other hand, if you tell your lawyer that you are planning to murder your boss, things get messy. Lawyers defend, but they are not supposed to become accessories to proposed illegal actions! When a lawyer believes on reasonable grounds that there is an “imminent risk” of death or serious bodily harm, including serious psychological harm, then the lawyer is obligated to disclose as much confidential information as is necessary to prevent the death or harm.

A lawyer can also disclose as much confidential information as may be necessary to defend himself, his associates, or employees, against allegations of wrongdoings with respect to a client’s affairs.

There are other exceptions to the rules about client confidentiality and solicitor-client privilege that we simply can’t get into here. As you can imagine, Courts have been kept busy over the years with cases brought by individuals, corporations, law enforcement agencies, and even governments, in attempts to break down the protections afforded to information provided to solicitors. Generally, these cases have not been very successful, as the Courts look for unique circumstances to justify an Order to release confidential information.

The upshot of all this is that you can talk to me as your lawyer and, unless we agree otherwise, your information is confidential. Even if I should write my memoir, I cannot reveal anything about my clients without their consent. A lot of very good stories have remained untold, and a lot of mysteries unsolved, due to that rule: what did O.J. Simpson really tell his now-deceased lawyer? We’ll never know, and that’s the whole point.

So give us a call, or come in to the Clinic for a talk. Your secrets are safe with us.

Legalese is a column of general information and opinion on legal topics by the lawyers of Rural Legal Services, Box 359, Sharbot Lake, ON, K0H2P0, 613-279-3252, or 1-888-777-8916. This column is not intended to provide legal advice. You should contact a lawyer to determine your legal rights and obligations.