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Chapter 5 out of 14 chapters in the annotated Professional Conduct Handbook
1. A lawyer shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship, regardless of the nature or source of the information or of the fact that others may share the knowledge, and shall not divulge any such information unless disclosure is expressly or impliedly1 authorized by the client, or is required by law or by a court.
2. A lawyer shall take all reasonable steps to ensure the privacy and safekeeping of a client's confidential information.
3. A lawyer shall not disclose the fact of having been consulted or retained by a person unless the nature of the matter requires such disclosure.
4. A lawyer shall preserve the client's secrets even after the termination of the retainer, whether or not differences have arisen between them.
5. A lawyer shall not use any confidential information respecting a client for the benefit of the lawyer or another person, or to the disadvantage of the client. When engaging in a business transaction with a client or former client in the limited circumstances permitted by Chapter 7, the lawyer shall not use for personal benefit any confidential information acquired in the course of acting for the client.
6. A lawyer who engages in literary work such as an autobiography or memoirs shall not disclose confidential information.
7. A lawyer shall not disclose to one client confidential information concerning or received from another client in a different matter, and shall decline employment or withdraw from a retainer which might require such disclosure.
8. A lawyer shall avoid indiscreet conversations or gossip, and shall not repeat gossip or information about a client's affairs, even though the client is not named or otherwise identified.
9. A lawyer who, while in public employment, had substantial responsibility or confidential information relating to a matter shall not, after leaving public employment, represent any other party in connection with that matter, without the consent of the lawyer's former public employer.
10. A lawyer who, while in public employment, acquired confidential government information about a person shall not, unless that person consents, represent a client other than the agency of which the lawyer was a public officer or employee, where that client's interests are adverse to that person, in a matter in which the information could be used to the material disadvantage of that person.
11. A lawyer may:
12. A lawyer may disclose information received as a result of a solicitor-client relationship if the lawyer has reasonable grounds to believe that the disclosure is necessary to prevent a crime involving death or serious bodily harm to any person.
13. A lawyer who is required by law or by order of a court to disclose a client's affairs shall not divulge more information than is necessary.
14. A lawyer who is required, under the Criminal Code, the Income Tax Act or any other federal or provincial legislation, to produce or surrender a document or provide information which is or may be privileged shall, unless the client waives the privilege, claim a solicitor-client privilege in respect of the document.
15. A lawyer who has access to or comes into possession of a document which the lawyer has reasonable grounds to believe belongs to or is intended for an opposing party and was not intended for the lawyer to see, shall:
16. A lawyer may disclose a client's confidential information for the purpose of securing the appointment of a guardian or in conjunction with other protective action taken on behalf of the client, provided:
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1. A client who voluntarily discloses or authorizes disclosure of a privileged communication, who makes legal advice an issue in proceedings, who commences a malpractice action against a lawyer or who instigates a disciplinary proceeding manifests an intention to waive privilege, at least to the extent necessary for the lawyer to mount a defence: see CED (Western 3rd) Vol. 12 "Evidence," Section 1054, p. 733, and cases cited, including R. v. Dunbar and Logan (1982), 68 CCC (2d) 13 (Ont CA).
2. A lawyer may have duties of confidentiality to a non-client lacking capacity. See Chapter 3, Rule 2.4.
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See also Chapter 13, Rule 2 Reporting another lawyer to the Law Society.
While there may be an implied waiver on the part of the client permitting disclosure of the client's name and address for the purpose of collection, where the client has failed to pay a bill, members may do only the minimum necessary to recover fees. As lawyers are bound by the ethical duty of confidentiality and the legal duty of solicitor/client privilege, lawyers are prohibited from reporting a client to a Credit Bureau.
A lawyer is subject to a duty of confidentiality to a prospective client who has disclosed confidential information to the lawyer notwithstanding that a retainer was never concluded.
A lawyer may petition a client into bankruptcy in order to collect a fee, but may not make use of any confidential information gained from the representation of the client beyond what is necessary to collect the fee.
A lawyer may not share space with a non-lawyer unless the non-lawyer has no access to lawyer's client records and there is no possibility of overhearing conversations relating to the law firm's clients.
It is not improper for a lawyer to make a general assignment of practice receivables or to permit the assignee to exercise rights under the assignment, provided the rules governing client confidentiality are not compromised.
It is improper for a lawyer who is the prospective vendor of a law practice to disclose confidential client information to a lawyer who is a prospective purchaser.
A lawyer's obligations of confidentiality are not violated by transmission of client information by e-mail unless unusual circumstances require enhanced security measures.
In responding to a Request for Proposals inviting lawyers to bid on legal work for the Insurance Corporation of British Columbia, lawyers may not identify other clients without those clients' consent.
A lawyer is entitled to disclose a client's confidential information to the trustee in a bankruptcy if it is necessary to do that to collect the fee.
A lawyer may not disclose any portion of a deceased client's confidential information for the purpose of assisting the police in the investigation of his client's murder unless directed to do so by the client's personal representative or a court.
A lawyer may not disclose confidential client information in order to assist in proving his case in a contractual dispute with a former partner.
A lawyer may permit an employee to do work out of the office, provided the lawyer is satisfied that doing so will not compromise client confidentiality. In determining whether a lawyer can fulfill obligations of confidentiality in these circumstances, the lawyer must have regard to, the trustworthiness of the employee, the nature and sensitivity of the information the employee will be taking away from the office, the environment in which the employee will be working, and the security that can be accorded to the confidential information contained in documents removed from the office by the employee. Lawyers must use due diligence to ensure that confidential information remains confidential. The due diligence required must take account of all the circumstances, but would usually include, at a minimum, giving the contractor written notice of the requirement to preserve confidentiality. It is not proper for such an employee to work on matters for clients adverse in interest who have retained different law firms.
It is not improper for a lawyer to provide confidential information about a client who is a patient under the Patients Property Act to the client's committee without the authority of a court order. However, it is not wrong for a lawyer to require the committee to obtain a court order compelling the lawyer to provide the information, particularly when the lawyer is uncertain whether there is a conflict of interest between the client and the committee, or for some other good reason.
Where the court requires parties to litigation to exchange a list of witnesses prior to a scheduled pre-trial confidence, and counsel have received instructions not to disclose this information, the lawyer can apply to the court for an exemption from this requirement. If the exemption is refused, the lawyer must decline to accept the client's instructions and, if necessary, withdraw from the retainer.
The missing Women's Task Force contacted a lawyer seeking information about someone who may have been a previous client. The lawyers duty of confidentiality required him to continue to keep the client's information confidential unless he is relieved of that responsibility by the client, the client's representative, or a court.
Lawyers may refer work that involves the practice of law to private contractors, such as a conveyancing and search company provided the lawyer can properly supervise the work and ensure confidentiality. The lawyer must consider, among other things, the trustworthiness of the contractor, the nature and sensitivity of information that might be imparted to the contractor, how that information is to be protected, and the environment in which the contractor will be working.
It is not improper for a lawyer to provide confidential drafting assistance to clients. Unless otherwise required by law or a court, the discretion to divulge the identity of the lawyer who provided drafting assistance should lie with the client.
A bill of account and its payment arises out of a solicitor-client relationship and of what transpires within it. It is therefore connected to the solicitor-client relationship and must be regarded, as a general rule, as one of its elements. The amount of fees and disbursements is information that is generally protected by solicitor-client privilege.
A lawyer may not act simultaneously for a child on a Young Offenders Act matter and the Superintendent of Family and Child Services on the apprehension of the child under the Family and Child Services Act.
Where a lawyer acting for a young person in a Young Offenders Act matter receives no confidential information relevant to a subsequent or contemporaneous CFCSA matter, it would not be improper for the lawyer to act for the Superintendent in the CFCSA matter.
Lawyers may refer work that involves the practice of law to private contractors. The real issue is whether the lawyer can properly supervise the work and ensure confidentiality. The lawyer must consider, among other things, the trustworthiness of the contractor, the nature and sensitivity of information that might be imparted to the contractor, how that information is to be protected, and the environment in which the contractor will be working.
A lawyer who receives a demand from the Canada Revenue Agency ("CRA") to produce documents under the Income Tax Act and is unable to obtain client instructions regarding whether to make a claim of privilege must claim the privilege, regardless of the lawyer's views about whether the documents are actually privileged.
An applicant for a development licence requested from the responsible Ministry information about meetings between the Ministry and a government solicitor and a copy of the legal opinion prepared by the solicitor. The court found that if a document meets the test for privilege (made between solicitor and client, intended to be confidential and entailing the seeking or giving of legal advice), then the document is privileged. There is no case for severance of privileged information and the release of other information in the document as provided under the legislation.
The court reversed a decision of the Information and Privacy Commissioner ordering that the Legal Services Society reveal information that would indicate that certain clients were represented by Legal Aid. Financial arrangements between solicitor and client, including whether or not Legal Aid is involved, is privileged and must not be disclosed directly or indirectly. The objective of the legislation is to preserve a fundamental right that has always been essential to the administration of justice and it must be applied accordingly.
Section 488.1 of the Criminal Code sets out a procedure for determining the claims of solicitor-client privilege in relation to documents seized from a law officer under a warrant. The procedure required that the material be seized at the time of search, required the solicitor to make an application within strict time limits for a determination whether the material was protected by privilege, and provided for the Crown to examine the material to assist in making the determination of privilege. The court found s. 488.1 unconstitutional. Because it permitted solicitor-client privilege to fall through the interstices of an inadequate procedure, the possible automatic loss of solicitor-client privilege through the normal operation of law is not reasonable. One of a lawyers most important duties and obligations is to protect the privilege and confidences of a client. That information must not be divulged to any person unless disclosure is expressly or impliedly authorized by the client, or is required by law or by a court. Where necessary, counsel might claim a blanket privilege at the outset of a search of the law office, particularly where a client cannot be found.
The plaintiffs sought an order requiring a defendant law firm to produce documents for discovery and to produce a list of documents setting out the documents over which privilege was claimed. The firm made a blanket claim of privilege, stating that its clients had refused to waive privilege. The firm claimed privilege based on the confidentiality obligations it had over documents in its control. The court held that a blanket claim of privilege was not sustainable and ordered the firm to produce a list of documents setting out the relevant documents and the basis for which privilege was claimed. The Rules of Court have the full authority of law. The lawyer has a duty to properly list documents in a List of Documents and should advise the client which are privileged and which are not. Proceedings can be taken under Rule 29(1.2) where there is doubt as to whether a document is privileged or not. If the issue of privilege cannot be resolved, the lawyer may have to consider withdrawing from the retainer.
Section 88 of the Legal Profession Act permits a lawyer who is under investigation by the Law Society to disclose confidential or privileged information to the Law Society without violating the lawyer’s duty of confidentiality or privilege.
A lawyer acted for an employer. Trade Union 1 was the bargaining agent for its employees. Another lawyer represented Trade Union 2, which was attempting to supplant Trade Union 1 as the bargaining agent for the employees and was seeking remedies against the employer for unfair labour practices. Trade Union 2 obtained a copy of a letter from the employer marked confidential and sought advice from its counsel concerning the employer's legal rights and responsibilities given Trade Union 2's activities. The second lawyer was obliged to follow all the requirements of Rule 15, including return of the letter.
Where there is a restraining order preventing the father in a matrimonial matter from contacting the mother (the lawyer's client), there is no obligation on a lawyer to return a document given to her by the father addressed to the children of the lawyer's client.
If client instructions prevent a lawyer from carrying out the lawyer's duty under Rule 15, the lawyer must follow the client's instructions but may not act for the client any further in the matter.
The parties negotiating a separation agreement were living in separate residences. Their child innocently obtained a copy of the husband's notes to his lawyer about the agreement and brought them to the wife's home. The wife's lawyer was required to return the notes in accordance with this Rule. The husband would have had a reasonable expectation of privacy about the notes and they were released in error.
A copy of a document obtained from premises to which a person has access does not have to be returned to the owner when no steps had been taken to secure the document.
A party's expectation of privacy regarding a document will depend on the steps taken to secure it. When that issue is in dispute, the lawyer who has received the document must return it. That does not prevent the lawyer from later seeking its disclosure on the basis of relevancy.
A lawyer who learns sensitive information about a client's case (e.g., the health problems of the other litigant) during a social interaction does not owe a duty to the person he learns it from. Having received the sensitive information, however, the lawyer is obliged to pass it on to his firm and to the firm's clients. To do otherwise would be inconsistent with the firms loyalty to the clients. The other persons lawyer must be advised about the social interaction. Failure to do so would be sharp practice.
A lawyer was guilty of professional misconduct when, prior to his retainer, he accepted a recording of a telephone conversation between his client's wife and her lawyer (without consent of either party), prepared a transcript of the recording, and used the transcript to prepare for an examination for discovery.
Rule 15 does not prevent lawyers from disclosing the contents of inadvertent disclosures to their clients where they have read the document before realizing it is sent in error. In these circumstances, the ordinary obligation that lawyers have to provide relevant information to their clients must prevail.
A lawyer acted for a client who purchased a strata lot. A portion of the building was in dispute between the client and the strata corporation, with the client claiming that a storage area constituted part of his strata lot. After raising the issue on behalf of the client with the strata corporation, the client found a binder of documents in a closet in the living area of his unit. The binder included letters from the strata corporations lawyer regarding the dispute. Some of the documents were likely privileged and were not intended for the lawyer or his client to see. Rule 15 required the lawyer to return the material to the strata corporation or its lawyer. After returning the documents, the lawyer was free to apply to the court to have the documents produced to him on the ground that privilege was lost as a result of their disclosure and they should be available to the lawyer's client for use in proceedings to resolve the dispute. If the client's instructions prevented the lawyer from carrying out his obligations under Rule 15, the lawyer must withdraw.
A lawyer’s client, the wife in divorce proceedings, had access to her husband’s email which contained evidence of undisclosed assets and income. Her husband had given her the password to two email accounts, but had subsequently changed only one. The client provided the emails to the lawyer from the account where the husband had given the wife the password. The lawyer did not have an obligation to turn over the emails in question to the husband or his lawyer because the husband had provided his wife with the password. Any information obtained from an account where the husband had changed the password and not provided it to the wife would trigger an obligation under Rule 15.
The purpose of Rule 15 is to correct some slip or error made on the part of a lawyer or another person in safeguarding or transmitting documents. It is not designed to protect lawyers from mistakes of judgment they may make in reviewing documents to determine whether they are disclosable.
Where spouses have separated, a lawyer acting for the wife must return to the husband's lawyer unopened mail addressed to the husband at the former matrimonial home, where the mail is in the lawyer's possession. Opened mail left at the home by the husband does not trigger an obligation under Rule 15.
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Chapter 5 out of 14 chapters in the annotated Professional Conduct Handbook