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Lawyers have duty to provide client confidentiality

Q:I live in a small town. Recently, some of my confidential business became town gossip. I think the only way it could have gotten out is if my lawyer spilled the beans. Can I do anything about this?

A:This allegation involves a breach of confidentiality by your lawyer. It doesn’t matter where in Canada you live – this is a serious allegation.

As with all serious charges, you need to be on solid ground before you make the accusation.

One place to start is with your lawyer. Ask him or her whether confidentiality was breached. Could it have come from anywhere other than that law office? If so, you should explore those possibilities as well.

A lawyer’s duty of confidentiality is sacrosanct. Only in limited circumstances can a lawyer breach privilege and disclose what a client has said.

When lecturing on ethics, I often tell lawyers and law students that we are in the trust business. Clients trust us with their money, property, livelihood, future, liberty and most of all, their secrets.

For the legal system to function properly, clients must be assured that what they say to their lawyer goes no further.

It is not just your particular lawyer that is bound. His or her partners and employees are equally bound by a duty of confidentiality.

Lawyers have a duty to ensure that all staff understands how sensitive the information is and that they have a duty not to reveal it.

Many law firms have policies that say violations of client confidentiality are grounds for immediate dismissal. That is how seriously the duty of secrecy must be taken.

Canadian lawyers have had comparatively few issues on this score.

A 2003 international survey asked lawyers if they would risk going to jail to protect their clients’ confidentiality.

Forty-nine percent of Canadian lawyers said they would rather go to jail than disclose what a client said to them, while in Britain, the birthplace of the common law system of justice, it was only 22 percent.

The core of the client confidentiality rule is that a lawyer must hold in the strictest confidence all information pertaining to a client’s business and personal matters, as long as that information was gained during and as a result of the lawyer-client relationship.

Lawyers cannot breach confidentiality and divulge such information unless the client authorizes them to do so, the law requires the lawyer to do so or the disclosure is permitted or required by the ethical rules that govern the conduct of lawyers.

This duty continues after the lawyer-client relationship ends.

If I defend a client on a serious criminal charge, I must keep secret what I have learned during the trial even after the process is completed.

The law recognizes few exceptions to this duty.

One such exception is when the safety of the public or third parties is in issue. For example, if a client discloses to a lawyer that he’s going to bring a gun to court, the duty of confidentiality gives way to the overriding duty of protection of innocent members of the public.

A lawyer may also breach confidentiality to protect himself against allegations that he acted improperly. If a client complains about his lawyer to the law society, he cannot insist that the lawyer keep all information confidential to the point that he cannot defend himself.

As well, the law may require disclosure. If a client consults with a lawyer just to get information or advice about how to commit a crime, then the lawyer may be able to reveal that to the authorities.

There is a national proposal that would allow or direct lawyers to breach confidentiality if their client is about to inflict serious financial harm on another person, although that has not yet been passed.

I recommend you talk with your lawyer and, if still not satisfied, raise the matter with the provincial law society.

Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon.

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