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Exploring a lawyer’s ethical obligations

Solicitor-client confidentiality is so important that it is rare for that trust to be broken and it is rightly protected by the courts, says Toronto senior litigation lawyer Jeffrey Silver.

“It enables the client to share all of the information that he or she needs to with a lawyer without it being disclosed to anyone else,” Silver tells AdvocateDaily.com. “Privacy and confidentiality in society are of great concern these days.”

He says ethical issues are raised in a host of professions including in medical and political spheres, and lawyers also wrestle with these concerns.

Silver, principal of Jeffrey C. Silver Barrister, says a lawyer’s duty to client confidentiality is encapsulated in Rule 3.3-1 of the Law Society of Ontario’s Rules of Professional Conduct.

It states that a lawyer must always hold in strict confidence the affairs of a client acquired in a professional relationship, he says.

“It’s a matter of ensuring there is trust between a lawyer and a client and that he or she can share all of the information necessary with the lawyer.”

The rule of confidentiality is distinguished from the evidentiary rule of privilege concerning oral and/or documentary communications passing between the client and the lawyer, he explains.

Silver says it is outlined in the rule commentary that the ethical rule is wider and applies regardless of the nature or source of the information and even if others may also have this same knowledge.

“In privilege, if others share the knowledge, or it is inadvertently disclosed, then privilege may be lost, but the lawyer still has a duty to keep it confidential. It is quite strict.”

There are four areas set out in Rule 3.3-1 where a lawyer may disclose evidence:

1) The client authorizes the lawyer to do so

2) The law society requires that information

3) A tribunal or court makes an order

4) Unless otherwise permitted under the rules

The key word in the rule is “may,” he says.

If a lawyer does choose to disclose confidential information, he/she must not divulge more detail than is required and may do so only if there is a belief there may be death or bodily harm, Silver says, referencing the commentary to the rule.

He suggests the rule uses the word “may” because there is no duty to rescue in Canada, except in the province of Quebec.

Silver says it’s not necessary to have a legal duty to protect because there is a belief people will act with compassion in life-and-death situations.

He saw that for himself after the April 23 van attack outside his Yonge Street office that killed 10 and injured 15.

“We are hopeful that society will act in the proper manner and indeed that is what happened,” Silver says. “People came to the aid of others and performed CPR until the paramedics arrived. People did react and did try to save people. They had no duty to do that.”

Silver says the exceptions to not having a duty to rescue include parent-child and teacher-student relationships as well as in certain professions such as police officers and prison guards, as outlined in a 1998 case where the judge confirmed that the “common law does not impose a general duty to rescue someone in peril.”

The Supreme Court of Canada set out three factors that must be considered when deciding when the concern for public safety could warrant a breach of privilege: if there is a clear risk to an identifiable person or group, if there is a risk of serious bodily harm or death, and if the danger is imminent, Silver says.

He notes that the commentary to the rule similarly states that the factors to be considered include:

  1. The likelihood that the potential injury will occur and its imminence

  2. The apparent absence of any other feasible way to prevent the potential injury, and

  3. The circumstances under which the lawyer acquired the information of the client’s intent or prospective course of action.

“The Supreme Court of Canada says that if a client is going to steal something or commit a white-collar crime, for example, that is not a sufficient reason to disclose that information to authorities,” he says.

A lawyer in a civil or criminal case may often need to get off the record and no longer act for the client, Silver says.

“The most prevalent reason for getting off the record is non-payment of fees. However, ethical issues may also be involved.”

In a recent case, the lawyer put in an affidavit stating there were ethical issues with the matter, Silver says.

“The court wasn’t satisfied with that and the criminal trial proceeded. The client was convicted and later appealed.”

Silver says the Court of Appeal overturned that conviction, stating it was an unfair trial because the court should not have forced the lawyer to continue.

"The appeal court stated the trial judge ought to have accepted that there were ethical issues without having the lawyer to provide details or particulars of them given the need to maintain  lawyer-client confidentiality," he says.

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