Code of Professional Conduct

CHAPTER IV

CONFIDENTIAL INFORMATION

RULE

The lawyer has a duty to hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship, and should not divulge such information unless disclosure is expressly or impliedly authorized by the client, required by law¹ or otherwise permitted or required by this Code.

Commentary

Guiding Principles
1. The lawyer cannot render effective professional service to the client unless there is full and unreserved communication between them. At the same time the client must feel completely secure and entitled to proceed on the basis that without any express request or stipulation on the client's part, matters disclosed to or discussed with the lawyer will be held secret and confidential.²

2. This ethical rule must be distinguished from the evidentiary rule of lawyer and client privilege with respect to oral or written communications passing between the client and the lawyer. The ethical rule is wider and applies without regard to the nature or source of the information or to the fact that others may share the knowledge.³

3. As a general rule, the lawyer should not disclose having been consulted or retained by a person unless the nature of the matter requires such disclosure.

4. The lawyer owes a duty of secrecy to every client without exception, regardless of whether it be a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.⁴

Confidential Information Not to be Used
5. The fiduciary relationship between lawyer and client forbids the lawyer to use any confidential information covered by the ethical rule for the benefit of the lawyer or a third person, or to the disadvantage of the client. The lawyer who engages in literary works, such as an autobiography, memoirs and the like, should avoid disclosure of confidential information.⁵

6. The lawyer should take care to avoid disclosure to one client of confidential information concerning or received from another client and should decline employment that might require such disclosure.⁶

7. The lawyer should avoid indiscreet conversations, even with the lawyer's spouse or family, about a client's affairs and should shun any gossip about such things even though the client is not named or otherwise identified. Likewise the lawyer should not repeat any gossip or information about the client's business or affairs that may be overheard by or recounted to the lawyer. Apart altogether from ethical considerations or questions of good taste, indiscreet shop-talk between lawyers, if overheard by third parties able to identify the matter being discussed, could result in prejudice to the client. Moreover, the respect of the listener for the lawyers concerned and the legal profession generally will probably be lessened.⁷

8. Although the Rule may not apply to facts that are public knowledge, the lawyer should guard against participating in or commenting upon speculation concerning the client's affairs or business.

Disclosure Authorized by Client
9. Confidential information may be divulged with the express authority of the client concerned and, in some situations, the authority of the client to divulge may be implied. For example, some disclosure may be necessary in a pleading or other document delivered in litigation being conducted for the client. Again, the lawyer may (unless the client directs otherwise) disclose the client's affairs to partners and associates in the firm and, to the extent necessary, to non-legal staff such as secretaries and filing clerks. This implied authority to disclose places the lawyer under a duty to impress upon associates, students and employees the importance of non-disclosure (both during their employment and afterwards) and requires the lawyer to take reasonable care to prevent their disclosing or using any information that the lawyer is bound to keep in confidence.⁸

Disclosure Where Lawyer's Conduct in Issue
10. Disclosure may also be justified in order to establish or collect a fee, or to defend the lawyer or the lawyer's associates or employees against any allegation of malpractice or misconduct, but only to the extent necessary for such purposes. (As to potential claims for negligence, see Commentary 10 of the Rule relating to Advising Clients.)⁹

Disclosure to Prevent a Crime
11. Disclosure of information necessary to prevent a crime will be justified if the lawyer has reasonable grounds for believing that a crime is likely to be committed and will be mandatory when the anticipated crime is one involving violence.¹⁰

12. The lawyer who has reasonable grounds for believing that a dangerous situation is likely to develop at a court facility shall inform the person having responsibility for security at the facility and give particulars. Where possible the lawyer should suggest solutions to the anticipated problem such as:

(a) the need for further security;
(b) that judgement be reserved;
(c) such other measures as may seem advisable.

Disclosure Required by Law
13. When disclosure is required by law or by order of a court of competent jurisdiction, the lawyer should always be careful not to divulge more information than is required.¹¹

14. The lawyer who has information known to be confidential government information about a person, acquired when the lawyer was a public officer or employee, shall not represent a client (other than the agency of which the lawyer was a public officer or employee) whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.

NOTES

1. Cf. CBA-COD 4; CBA 3(7); Que. 3.05.01, .02, .03; Ont. 4; Alta. 15; N.B. C-3; IBA B-8; ABA-MR 1.6; ABA Canon 4, DRs, 4-101 (A), -(B), (C).

2. "... [I]t is absolutely necessary that a man, in order to prosecute his rights or to defend himself ... should have recourse to lawyers, and ... equally necessary ... that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege and not the privilege of the confidential agent) ...", per Jessell M.R. in Anderson v. Bank of British Columbia (1876), L.R. 2 Ch.D. 644 at 649 (C.A.).

3. Cf. Orkin pp. 83-86, and Tollefson, "Privileged Communications in Canada" in Proceedings of 4th Int. Comp. Law Symp. (1967) (Univ. of Ottawa Press) 32 at 36-41.

4. "... [A] fundamental rule, namely the duty of a solicitor to refrain from disclosing confidential information unless his client waives the privilege .... Because the solicitor owes to his former client a duty to claim the privilege when applicable, it is improper for him not to claim it without showing that it has been properly waived.", per Spence, J. in Bell et al. v. Smith et al. (1968), S.C.R. 664 at 671.
To waive, the client must know of his rights and show a clear intention to forego them: Kulchar v. March & Benkert (1950), 1 W.W.R. 272 (Sask. K.B.).

5. Misuse by a lawyer for his own benefit of his client's confidential information may render the lawyer liable to account: McMaster v. Byrne (1952), 3 D.L.R. 337 (P.C.); Bailey v. Ornheim (1962), 40 W.W.R. (N.S.) 129 (B.C.S.C.).

6. "Joint Retainer. When two parties employ the same solicitor, the rule is that communications passing between either of them and the solicitor, in his joint capacity, must be disclosed in favour of the other - e.g., a proposition made by one, to be communicated to the other; or instructions given to the solicitor in the presence of the other; though it is otherwise as to communications made to the solicitor in his exclusive capacity." (quotation from Phipson on Evidence cited and approved by Aikins, J. in Chersinoff v. Allstate Insurance (1968), 69 D.L.R. (2d) 653 at 661 (B.C.S.C.).
As to the duties of lawyers instructed by insurers in the defence of the insured in motor accident cases, see Groom v. Crocker et al. (1938), 2 All E.R. 394 (C.A.).

7. See Eaton, "Practising Ethics" (1967), 10 Can. B.J. 528.

8. "When a solicitor files an affidavit on behalf of his client ... it should be assumed, until the contrary is proved, or at least until the solicitor's authority to do so is disputed by the client, that the solicitor has the authority to make the disclosure.", per Lebel, J. in Kennedy v. Diversified (1949), 1 D.L.R. 59 at 61 (Ont. H.C.).

9. There is no duty or privilege where a client conspires with or deceives his lawyer: The Queen v. Cox (1885), L.R. 14 Q.B.D. 153 (C.C.R.). Cf. Orkin at p. 86 as to the exceptions of crime, fraud, and national emergency.

10. To oust privilege the communication must have been made to execute or further a crime or fraud it must be prospective as distinguished from retrospective: R. v. Bennett (1964), 41 C.R. 227 (B.C.S.C.) and cases there cited.

11. Cf. Freedman, "Solicitor-Client Privilege Under The Income Tax Act" (1969), 12 Can. B.J. 93.

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