Being Confidential: Secrets and Lies

AuthorAllan C. Hutchinson
Conf‌identiality is one of the most important, yet misunderstood, obli-
gations to their clients that lawyers undert ake. Notwithsta nding Ben-
tham’s earlier opposition to the pr ivilege on the basis t hat it protects
only the guilty, the basis and need for some duty of conf‌identiality is
now undisputed. There still rema in considerable confusion and contro-
versy about when the duty arise s, to whom the duty is owed, what it cov-
ers, what its limits a re, and what the consequences are of any breach. All
these matters go to the heart of lawyers’ duties to their clients i n light of
the competing demands t hat are placed on lawyers by b oth the system
and their own consciences. Wh ile the duty is fundamental, it is not
absolute: it cannot be allowed to work as a cover or a pretext for abuse.
There is a public interest defence to any claims by clients that lawyers
have breached the duty. Indeed, there are some instance s in which law-
yers are under an obligation to breach the duty. All in all, therefore, the
duty of conf‌identiality is as confusing as it is centr al.
Accordingly, in this chapter I will t ry to make sen se of the duty
of conf‌identiality and its limits. There are two main sources that place
obligations of conf‌identiality on law yers: the law of evidence and the
professional rules. Under evidentiary rule s, lawyers are entitled and
required to keep conf‌idential al l communications between clients and
themselves th at pertain to the g iving of legal advice and as sistance; this
is a privilege to the client, and it applies regardless of whether litiga-
tion is involved or is imminent. Al so, there is the litigation priv ilege
that requires and entitles lawyers to keep conf‌idential any information
Being Conf‌ident ial: Secrets and Lies 115
they get in contemplation of and in preparation for litigation. Further,
lawyers may, in special circumstances, come under a legal obligation
to keep conf‌idential certain dealings wit h non-clients, though this is a
narrow a nd infrequent situat ion. As well as such ev identiary priv ileges,
lawyers are under a strong professional duty to keep all their communi-
cations with their clients conf‌idential, whether they relate to legal or to
non-legal matters. This professional duty is broader t han the eviden-
tiary pr ivilege, but lawyers can be relieved of such an obligation at the
direction of a court. Whereas the f‌irst two sections of this chapter will
deal with the ev idential privi leges attaching to law yer-client communi-
cations and general litigation prepar ation, the third sect ion explores the
ethical duty of conf‌idential ity. The fourth section covers the limits that
are imposed on the duty of conf‌identia lity, and the f‌ifth section can-
vasses the circumstance s in which clients can authorize disclosure.
Under the law of evidence, communications between lawyers and their
clients are privi leged and impose on lawyers a duty not to reveal t hem
or use them in any way to the client s’ disadvantage. From the outset, it is
important to establ ish that, although this privi lege to withhold informa-
tion and documents can and does benef‌it lawyers, it belongs to clients;
it is for clients to decide when the privilege can be waived and informa-
tion disclosed.1 Consequently, lawyers cannot choose to make public
any communications with their clients, even if they believe it is in the
clients’ best interests to so do. As such, although there are some special
circumstances in which lawyers m ight be required to reveal such infor-
mation, the duty of conf‌identialit y is strict and uncompromising.
The basis for this rest riction is straightforward a nd uncontroversial:
clients must be able to obtain full and frank legal adv ice and to confer
with their lawyers without the fear that the basis of that communica-
tion will become public and be used against them. Clients should be
able to speak with their lawyers in t he full and uninh ibited conf‌idence
that what is said will go no further. There is a zone of privacy around
such communications that the law insist s must be jealously gua rded.
Apart from protecting the clients’ privacy, this conf‌ident iality faci li-
1Anderson v. Bank of British Colum bia, [1876] 2 Ch. D. 644 at 649 (C.A.), Jessel
M.R. For a good general intro duction to some of the broader evidence is sues,
see D.M. Paciocco & L. Stues ser, The Law of Evidence, 4th ed. (Toronto: Irwin
Law, 2005) at 203–56.

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