Confidentiality Exceptions
| Author | David Layton; Michel Proulx |
| Pages | 208-262 |
208
CHA PTER 5
CONFIDENTIALIT Y
EXCEPTIONS
A. INTRODUCTION
The duty of confidentiality is central to t he integrity of client-lawyer
relationships, and the profession and administration of justice more
generally. However, there are other societal values that in some case s
trump the duty, permitting or even mandating disclosure of confi-
dential information. For this reason, the rules of professional conduct
contain various exceptions to the obligation of confidentiality, often
grappling with the que stion of exactly when confidentiality can g ive
way because of inconsistency w ith important countervailing values.
Other exceptions are based on the client’s authority to release informa-
tion or on the recognition that widespre ad public awareness of infor-
mation may render the lawyer ’s obligation otiose. While the exception s
most commonly suggested by Canadi an ethical rules are dealt with in
this chapter, their application in cert ain special circum stances is can-
vassed separately el sewhere in this book.1
As we shall see, in some inst ances an exception is only vaguely
described or hinted at by t he rules, which as a result may offer only
minimal g uidance for practising lawyers. In other cases, exceptions
provide a discretion as to whether disclosure should be made, which
may leave counsel with a difficult decision as to the proper course to take.
Finally, the exceptions to the duty of confidentiality c an be controversial,
1 See, for example, Ch apters 7 and 10.
Confidenti ality Exceptions 209
and probably as a result are sometimes framed differently in different
provinces. It is therefore important that counsel consult the ethical
rules applicable in his jurisdiction and not blithely assume complete
consistency from province to province. With t hese forewarnings, we
can now look at some of the instances where Canadian ethical rules
may operate to relieve counsel from the usual obligation to keep client
inform ation confident ial.
B. AUTHORIZED DISCLOSURE
The disclosure of otherwi se confidentia l information is permitted where
authorized by the client.2 After all, the lawyer’s duty of confidentiality
is for the benefit of the client, and the rationale for maint aining confi-
dentiality dissipates where the client can be said to per mit disclosure.
Authorized disclosure c an be viewed either as an exception to the duty
of confidentiality or as not coming wit hin the scope of the duty to
begin with. The Can adian rules of professional conduct tend to the former
vi ew, 3 which has the advant age of emphasizing the importance of pro-
tecting confidentialit y in the ordinary course. Authorization comes in
two forms, express or implied, e ach of which will be considered in tur n.
1) Express Authority
Disclosure can be expressly authorized by the client.4 If waiver of con-
fidentiality is clea r and unambiguous, consent can even per mit use or
disclosure that r isks harm to the client.5 In any case of ex press consent,
however, counsel must make sure that the client fully underst ands the
ramifications of disclosure, including all reasonably foreseeable advan-
tages and disadvantages.6 Counsel need competently advise the client
2 See Alta, S ask r 2.03(1)(a) & commentary; BC, Ma n, Ont, NS, NL r 3.3-1(a) and
commentar y 9; An act respecting the Barreau du Quebec, CQLR c B -1, s 131(2); NB
ch 5, rule and comment ary 9(a) and 13; CBA Code ch IV, rule and commentary 13.
3 See rules and c ommentary cited in preced ing note.
4 Ibid.
5 S ee Third Restatement § 61, comment “b.”
6 See McClure v Thompson, 323 F3d 1233 at para s 54–56 (9th Cir 2003), certior-
ari denied, 5 40 US 1051 (2003): client’s consent to relea se the location of his
murder victim s was not informed, becaus e counsel failed to make cle ar possible
adverse consequences; Commonwealth v Downey, 65 Mass App Ct 547 at 552
(2006): consent to lawyer s wearing concealed record ing devices during tr ial at
the request of fil m company was not informed, beca use clients were not alerted
to risk that pr ivileged communication s would be broadcast in the media .
ETHICS AND CR IMINAL LAW210
in this respect, and where the action being considered raise s a pos-
sible conflict of interest, independent legal advice may be neces sary.7 It
is possible that although fully-informed consent is obtained, conflict
concerns cannot be allev iated.8 It may be, for example, that a potential
conflict of interest involving two clients i s waived only by one or that
despite a knowing waiver by both clients, the court is not prepared to
treat the conflict problem as resolved.
In the United States, ABA Model Rule 1.6(a) and the Third Restate-
ment § 61 require counsel to consult with the client before obtain ing
express consent. In contrast, most Canadian r ules of professional
conduct dealing with confidentiality do not make clear that expre ss
consent must be fully informed. However, this requirement is surely
mandated as part of a lawyer’s duty to be honest and candid when ad-
vising a client.9
Example: A client is in custody on serious charges and has prepared
and provided to counsel a summa ry of his whereabouts on the day of
the offence. The client wants his parents to h ave a complete under-
standing of the case, and to this end he asks counsel to s end them a
copy of the summary. Counsel should not take thi s step without first
making the client aware of t he possible loss of privilege and any attend-
ant harm.10
2) Implied Authority
A lawyer is als o permitted to reveal or use confidential information
based on the implied authority of a client.11 Author ity can ordinar ily
be implied where disclosure or use is necessary to advance the cl ient’s
interests regarding t he subject matter of the retainer. Often included in
the scope of implied authority is disclosure to other lawyers, secretar-
ies, and paralegals working w ith or for the firm, as well as outside con-
tractors such as lawyers, private investigators, and prospective exper t
witnesses. These sorts of people are frequently employed by counsel to
7 See Chapter 6, Sect ion O(1)(d).
8 See Chapter 6, Section O(2).
9 See Chapter 3, Section E.
10 See R v Kotapski (1981), 66 CCC (2d) 78 (Que SC), aff’d (1984), 13 CCC (3d) 185
(Que CA): counsel sent such a docume nt to a former client’s wife and privi lege
was lost.
11 See the rule s cited at note 2, above in this chapte r.
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