Duty of Confidentiality

There is a lot of confusion about the lawyer’s duty of confidentiality and we have recently had a few run-ins with that confusion.  So much so that it bears a blog entry.

If you are a regular reader of this blog, or just a fan of the way lawyers in Ontario are regulated (and really, who isn’t?), you will know that we are all bound by the Rules of Professional Conduct.  Rule 2.03 concerns a lawyer’s duty of confidentiality:

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.

 

This means that if you have retained a lawyer, the duty applies.  The duty is akin to having your lawyer sign a very tight Non-Disclosure Agreement with severe penalties.  Lawyers who violate the rules are subject to discipline and disbarment – this rule is no exception.  And trust me; your secrets are not worth our license to practice law.

There are exceptions to this duty, but they are few and they make sense.  A lawyer may divulge the bare minimum required if (1) compelled to do so by a court, (2) to avert serious harm or imminent death, (3) to defend ourselves in an action where a client sues their lawyer and the confidential information will exonerate the lawyer and (4) where a client refuses to pay the lawyer and the confidential information relates directly to the non-payment.

The reason for the rule is simple –in order to have the full measure of legal representation, clients need to feel that they can freely discuss their affairs with their lawyer.  The reverse is also true – in order to give a client the full measure of representation, lawyer’s require as much information as possible – the good, the bad and the ugly.

If you have any questions about the duty of confidentiality or any other aspect of your legal representation, contact us.

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