What Everyone Should Know About Lawyer-Client Confidentiality in Canada
Solicitor-client privilege is one of the cornerstones of a healthy and productive lawyer-client relationship. Canadian law also establishes solicitor-client privilege as a fundamental legal right. Yet, what is solicitor-client privilege? How does the law protect you, and how do you know what type of communication between you and your lawyer remains private?
If you need legal assistance, you need to trust that the lawyer you are working with can effectively advocate for you. Trust is the basis of all solicitor-client relationships. If you fear telling your lawyer crucial details, your lawyer cannot effectively represent you, and you may inadvertently jeopardize your case.
The criminal and professional discipline lawyers at Posner Craig Stein, LLP have successfully defended some of the most challenging criminal cases in Ontario. We understand the value that lawyer-client confidentiality provides to the people we represent. Our driven and passionate legal team wants to help you understand the meaning of lawyer-client confidentiality in Canada and how Canadian laws protect you as you navigate the legal process.
What Is Solicitor-Client Privilege?
Solicitor-client privilege is another term for lawyer-client confidentiality. Solicitor-client privilege means you can communicate the circumstances of your situation with your lawyer and remain confident that those intimate details remain private. Confidentiality is vital because it allows clients to freely speak about the circumstances of their situation in a safe environment. Solicitor-client privilege fosters open dialogue and communication, ensuring that a lawyer can prepare a case that helps meet their client’s needs and further their client’s legal objectives.
When clients fear sharing the details of their situation with a lawyer, it creates barriers to building an effective legal strategy. Lawyers without all the facts can suddenly find themselves in a precarious position, unable to argue the case’s merits because of missing information.
How Do You Define Privilege?
In the legal context, privilege only applies to communications between a lawyer and a client for the express purpose of asking for or receiving legal advice. As a client, you have the right to reasonably expect communication between you and your lawyer to remain private.
The Supreme Court of Canada has made numerous rulings on cases involving privilege and generally conceded that solicitor-client privilege is nearly absolute. Examples of communications that may fall under solicitor-client privilege include:
- Legal bills or invoices
- Information included in account statements
- Communications between a lawyer and client that are intentionally made under the umbrella of the solicitor-client relationship
Other information could also potentially be protected under the solicitor-client privilege guidelines. Additionally, an established lawyer-client relationship must be present for solicitor-client privilege to apply. Casual conversations or communications between individuals who have not entered a formal lawyer-client relationship may not be protected.
What Is Litigation Privilege?
Litigation privilege is sometimes called work product privilege. Litigation privilege applies to communications between a lawyer, client, or third parties when the communications refer to litigation or when anticipating moving forward with litigation.
The Supreme Court of Canada ruled in Blank v. Canada that the purpose of the privilege is to create an expected zone of privacy between clients and lawyers concerning litigation or pending litigation. It allows individuals and lawyers to prepare their legal position privately, without fearing interference or premature disclosure of privileged information.
Duty of Confidentiality
Solicitor-client privilege and duty of confidentiality are phrases often used interchangeably. However, they are distinct legal concepts. Solicitor-client privilege protects a client’s private communications between themselves and their lawyer. The duty of confidentiality typically refers to the requirement that lawyers not disclose details about their work with a client to others. Not only does the duty of confidentiality cover private communications, but it also bars the lawyer from revealing the details of their working relationship with a client.
In addition to not divulging client information, the duty of confidentiality ensures that lawyers secure information and documents to prevent the inadvertent disclosure of information. For example, lawyers must securely store documents to prevent unintended individuals from reviewing client information and documentation. Lawyers must also be particularly mindful of working with client information in public spaces or remotely. Remote work can pose unique challenges to confidentiality. Lawyers working remotely via the internet should take extra precautions and security measures to protect sensitive client data.
It is also vital to understand that the duty of confidentiality applies whether you decide to become the lawyer’s client or not. If you consult with a lawyer, you can reasonably assume that your information remains confidential regardless of whether you retain their services. The duty of confidentiality also extends beyond the lawyer-client relationship. Although your legal business may be concluded, your lawyer is still bound by the duty of confidentiality. So, although you may no longer be working together in the lawyer-client capacity because of the resolution of your case, your lawyer cannot breach confidentiality and share the details of your situation just because the case is complete.
Clients should keep in mind that not all confidential information is privileged. Sometimes, confidential information inadvertently gets disclosed to third-party entities. If that information falls under the umbrella of privileged information and there was no intention of waiving that privilege, the inadvertent disclosure might not result in a loss of privilege.
Special Considerations in Maintaining the Duty of Confidentiality
Every legal situation is unique. There are specific types of cases, especially in criminal representation, that may raise issues in maintaining the duty of confidentiality. Lawyers cannot assist a client who remains unlawfully at large. Suppose an individual poses a threat to public safety. In that case, the duty of confidentiality does not apply to information the lawyer may disclose, which the legal process can compel. Other exceptions to confidentiality outlined by Ontario law include:
- When a client expressly or impliedly authorizes consent
- When required by law or by order of a tribunal
- When required by the Law Society of Ontario
Privilege and confidentiality can get complicated when a lawyer represents a minor. Minors are typically accompanied by their parents. However, privilege and the duty of confidentiality still apply, and a lawyer cannot share information with parents unless the minor consents.
Working with minors can also be challenging because sharing privileged information with parents may negate the communications of their otherwise privileged status, meaning the prosecution may seek communications from the parents as witnesses. This potential complication does not necessarily mean parents should never be present when a minor interacts with their lawyer. However, experienced lawyers should advise their clients of all the implications of discussing confidential and privileged information.
Although a lawyer is not required to disclose confidential information, there may be cases where they deem it necessary. Lawyers in Ontario are permitted to reveal confidential client information when they reasonably believe there is an imminent risk of death or serious bodily harm.
If a client is threatening to harm themselves and their lawyer believes the threat is credible, they can act, disclosing confidential information by preparing a written note including:
- Date of disclosure
- Time of disclosure
- The grounds supporting their decision to disclose confidential information, including information about the harm they intended to prevent, the identity of the person prompting the disclosure, and the identity of the person or people exposed to harm.
- Content of communication
- Method of communication
To whom and when this confidential information gets disclosed depends on the circumstances.
Solicitor-Client Privilege and Criminal Offences
The solicitor-client privilege applies to any solicitor-client relationship, no matter the case. Personal injury lawyers, estate lawyers, and criminal defence lawyers are all bound by the Ontario rules governing solicitor-client privilege. However, solicitor-client privilege may come into play in unique ways depending on the individual’s various charges.
At Posner Craig Stein, LLP, we have the resources and experience to navigate some of the most challenging cases in Ontario. How does solicitor-client privilege play into the cases we handle?
Homicide is one of the most serious criminal offences. If you’ve been accused of homicide – first degree, second degree, manslaughter, criminal negligence causing death or dangerous/impaired driving causing death – you must understand your fundamental solicitor-client privilege rights because omitting or hiding information from your lawyer can negatively impact your case. Many individuals accused of homicide resist sharing the details of their situation with a solicitor for fear of judgment or legal repercussions.
However, the solicitor-client privilege protects all written and oral communications between an individual charged with homicide and their legal advisor. These communications are made in confidence to seek practical legal advice. The information you provide your lawyer cannot be used against you. It can only be used to prepare an effective defence based on the circumstances of your situation.
Many individuals fear sharing privileged information with a lawyer for fear that it can ruin their personal and professional reputations. Often, individuals charged with operating a motor vehicle with excess alcohol or drugs in their system are afraid or embarrassed to discuss this with their lawyers. The fact, however, is that having an open and honest discussion with your lawyer about alcohol/drug consumption and abuse can have a very beneficial impact on the outcome of your case. Solicitor-client privilege means the information you communicate to your lawyer is private and cannot be shared. While the unique details of your communication are privileged, remember that criminal charges in Canada are not private or confidential. Courts are open to the public, and the charges against an individual become a matter of public record. Winning your case will help restore your reputation. Posner Craig Stein will fight hard for this.
Drug offences are among the most common cases in Ontario. Effective representation means disclosing crucial information about your situation to an experienced criminal defence lawyer. Disclosing the specifics of your situation, either orally or through written communication with a lawyer, means those details are protected and remain private. To prepare a solid defence strategy, you may need to disclose specific details to your lawyer about the extent of your drug use and activity and the people you associate with or purchase drugs from. It can be nerve-wracking to offer your lawyer this sensitive information. However, solicitor-client privilege protects your communications, keeping them private so you can be candid with your advocate.
Individuals accused of sexual offences tend to be hesitant about sharing their situation’s details, even with their own lawyer. While solicitor-client privilege and the duty of confidentiality apply to all legal situations, it is essential when individuals are especially reluctant to share information. Although telling your private information can be challenging and perhaps painful, understand that solicitor-client privilege protects communication between you and your lawyer. You should never hesitate to disclose the full details of your situation to your lawyer, no matter how disturbing you believe someone may find them. Posner Craig Stein has represented hundreds of individuals charged with sexual assault in Ontario and we have achieved exceptional results in many of these cases. If you entrust our firm with your case, we will take the time to hear your side of the story and present it to the judge or jury in a sophisticated and compelling manner.
Domestic Violence Offences
Individuals tend to keep family matters private. However, remember that privacy extends to the solicitor-client relationship. You should feel confident that your information is in good hands when you work with an experienced domestic violence lawyer. Many people fear sharing confidential information, even with lawyers, because of Canadian zero-tolerance policies. Yet, to ensure you have the most effective representation possible, you must share the details of your situation, understanding that your fundamental right to solicitor-client privilege protects your private legal communications. Posner Craig Stein deals with domestic violence cases every day. We have an extraordinary track record in securing solid and positive results for our clients charged with domestic assault. Our firm will treat all of the information you provide us in a sensitive, thoughtful, delicate and confidential manner. By the time your case gets to court, we will be ready to fight for you.
Fraud & Financial Crimes
Hiding the details of fraud and financial crimes to protect yourself, others, or your financial stability only hurts your chances of obtaining effective legal representation. Many individuals charged with financial crimes are hesitant to reveal the depths of their alleged criminal activity or the sensitive financial details of their situation. Lawyer-client confidentiality and solicitor-client privilege rights should give you the peace of mind to confidently provide your lawyer with the information they need to build a solid defence for you. Posner Craig Stein has a long history of defending complex fraud cases. These cases may involve offences under the Securities Act, the Income Tax Act, and the Criminal Code of Canada. We have experience in dealing with crypto-currency and financial/white collar fraud cases. All information you provide to us as we build a defence strategy for you will be held in strict confidence. Count on Posner Craig Stein for a sophisticated defence in fraud and financial crime litigation.
What Happens If a Lawyer Breaks Client Confidentiality?
First, breaking client confidentiality erodes the lawyer-client relationship. Clients can lose faith in their advocate, which can irrevocably hinder a client’s ability to move forward with the lawyer-client relationship. There is never an excuse to breach the duty of confidentiality or solicitor-client privilege unless a lawyer is compelled to do so by the court or communications fall under one of the previously mentioned confidentiality exemptions.
Additionally, valid allegations of breach of confidentiality can constitute professional misconduct. Misconduct can lead to significant penalties. The Law Society of Ontario takes confidentiality investigations very seriously. If the Law Society body finds a complaint valid, a lawyer can face potential penalties like a formal warning, temporary suspension, fines, or the revocation of their license, also called disbarment. The severity of the punishment depends on the unique circumstances of the situation.
Privilege and confidentiality are fundamental legal rights. A breach of either is a moral and legal failing. You deserve to feel confident that the lawyer you work with can protect your confidential and private communications and information.
Discuss Your Case with a Knowledgeable and Trustworthy Criminal Defence Lawyer Today
Have you been arrested or charged with a criminal offence? It can be challenging to share the personal details of your struggle with anyone, let alone a stranger. Rest assured that the discreet, professional, and experienced lawyers at Posner Craig Stein, LLP, are here to help. We pride ourselves on upholding Ontario’s strict confidentiality and solicitor-client privilege guidelines. No matter your situation, you can feel confident that our lawyers treat your communications and personal information with the utmost secrecy and security according to Ontario law.
If you are searching for effective legal representation, look no further than the Posner Craig Stein, LLP team. We work tirelessly to achieve the best possible outcome. Contact our Ontario office today to arrange a confidential legal consultation and discuss the unique aspects of your case.