Daniel R. MeddDaniel R. MeddBarrister & SolicitorBarrister & Solicitor

Privacy and CommunicationPrivacy and Communication

Rules of Professional Rules of Professional ConductConduct

Section 2.03 - ConfidentialitySection 2.03 - Confidentiality Rule 2.03 (1): A lawyer at all times shall Rule 2.03 (1): A lawyer at all times shall

hold in strict confidence all information hold in strict confidence all information concerning the business and affairs of concerning the business and affairs of the client acquired in the course of the the client acquired in the course of the professional relationship and shall not professional relationship and shall not divulge any such information unless divulge any such information unless expressly or impliedly authorized by the expressly or impliedly authorized by the client or required by law to do so. client or required by law to do so.

Rules of Professional Rules of Professional ConductConduct

Section 2.03 - ConfidentialitySection 2.03 - Confidentiality Commentary: A lawyer cannot render Commentary: A lawyer cannot render

effective professional service to the client effective professional service to the client unless there is full and unreserved unless there is full and unreserved communication between them. At the same communication between them. At the same time, the client must feel completely secure time, the client must feel completely secure and entitled to proceed on the basis that, and entitled to proceed on the basis that, without any express request or stipulation without any express request or stipulation on the client’s part, matters disclosed or on the client’s part, matters disclosed or discussed with the lawyer will be held in discussed with the lawyer will be held in strict confidence. strict confidence.

Rules of Professional Rules of Professional ConductConduct

Section 2.03 - ConfidentialitySection 2.03 - Confidentiality Commentary (cont’d): The rule Commentary (cont’d): The rule

prohibits disclosure of confidential prohibits disclosure of confidential information because confidentiality and information because confidentiality and loyalty are fundamental to the loyalty are fundamental to the relationship between a lawyer and relationship between a lawyer and client and legal advice cannot be given client and legal advice cannot be given and justice cannot be done unless and justice cannot be done unless clients have a large measure of freedom clients have a large measure of freedom to discuss their affairs with their to discuss their affairs with their lawyers.lawyers.

Rules of Professional Rules of Professional ConductConduct

Section 2.03 - ConfidentialitySection 2.03 - Confidentiality Commentary (cont’d): A lawyer owes Commentary (cont’d): A lawyer owes

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

Rules of Professional Rules of Professional ConductConduct

Section 2.03 - ConfidentialitySection 2.03 - Confidentiality Not to be confused with “Privilege” Not to be confused with “Privilege”

Evidentiary ruleEvidentiary ruleAnything arising out of the Anything arising out of the lawyer/client relationship lawyer/client relationship (conversations, documents, etc.) (conversations, documents, etc.) are inadmissible in courtare inadmissible in court

Rules of Professional Rules of Professional ConductConduct

Section 2.03 - ConfidentialitySection 2.03 - Confidentiality Should be explained to client at first Should be explained to client at first

interview interview Encourage honestyEncourage honestyImplicit v. Express consentImplicit v. Express consent

Implied ConsentImplied Consent

Necessary to Fulfill Responsibilities as Necessary to Fulfill Responsibilities as LawyerLawyer

Discussions with Crown Prosecutor, Discussions with Crown Prosecutor, Court staff, Judges, etc.Court staff, Judges, etc.

Submissions in Court or before the Submissions in Court or before the Ontario Review BoardOntario Review Board

Consultation with other lawyers, or Consultation with other lawyers, or support staffsupport staff

Implied ConsentImplied Consent

Can be limitedCan be limited Client can instruct not to share Client can instruct not to share

certain information with anybodycertain information with anybody Otherwise, lawyer uses judgment Otherwise, lawyer uses judgment

about what to share in client’s best about what to share in client’s best interestsinterests

Express ConsentExpress Consent

Applies to Everyone ElseApplies to Everyone Else Including family membersIncluding family members Client should be specifically asked Client should be specifically asked

about sharing any information with about sharing any information with familyfamily

Role of FamilyRole of Family

Particularly complex relationship Particularly complex relationship when client suffers from a mental when client suffers from a mental illnessillness

Family involvement and support is Family involvement and support is often vital to improving the client’s often vital to improving the client’s situationsituation

Family relationships are often Family relationships are often strained, or even unworkable, due to strained, or even unworkable, due to the illnessthe illness

Role of FamilyRole of Family

Bail/Release:Bail/Release: First issue that arises when someone is First issue that arises when someone is

chargedcharged Is it safe to release them?Is it safe to release them? Will they come to Court?Will they come to Court? Where will they live?Where will they live? Under what terms?Under what terms? Medical or other appointments?Medical or other appointments?

Who will be in charge of making sure they Who will be in charge of making sure they do everything the Court tells them to?do everything the Court tells them to?

Role of FamilyRole of Family

SuretySurety Family members often best optionsFamily members often best options

Closest relationshipClosest relationship Some knowledge of mental illnessSome knowledge of mental illness Some experience dealing with symptomsSome experience dealing with symptoms Financial resourcesFinancial resources

Nobody can beNobody can be forced to sign as forced to sign as suretysurety

Role of FamilyRole of Family

Other benefits:Other benefits: Background informationBackground information SentencingSentencing Review Board DispositionsReview Board Dispositions

Role of FamilyRole of Family

All this is to say that it is often a good All this is to say that it is often a good idea, and in the client’s best interest, idea, and in the client’s best interest, for family members to become for family members to become involved, and for information to be involved, and for information to be shared openlyshared openly

Lawyer/Client RelationshipLawyer/Client Relationship

Lawyer is one participant in the Lawyer is one participant in the justice system with the primary justice system with the primary responsibilities of:responsibilities of:

Championing the client’s best Championing the client’s best interestsinterests

Following the client’s instructions, Following the client’s instructions, thereby asserting their wishesthereby asserting their wishes

Role of ClientRole of Client

Certain decisions can only be made by the Certain decisions can only be made by the client:client:

Whether to plead guilty or not guiltyWhether to plead guilty or not guilty Whether to testifyWhether to testify Sharing of informationSharing of information

Other decisions left to the lawyer’s Other decisions left to the lawyer’s expertise:expertise:

Which witnesses to callWhich witnesses to call What questions to askWhat questions to ask

Role of ClientRole of Client

Relationship does not change if the Relationship does not change if the client is mentally ill:client is mentally ill:

Can only offer adviceCan only offer advice Must follow the client’s instructions, Must follow the client’s instructions,

even if they are irrational, and even if they are irrational, and against their interestsagainst their interests

Exception: client is unfitException: client is unfit

Role of ClientRole of Client

Everybody’s different:Everybody’s different: Some clients want all the help they Some clients want all the help they

can get, and have open relationships can get, and have open relationships with family memberswith family members

Some want certain information or Some want certain information or details to be withhelddetails to be withheld

Some, for whatever reason, are Some, for whatever reason, are adamant that their family remain adamant that their family remain entirely in the darkentirely in the dark

Role of ClientRole of Client

In the end, all decisions must be In the end, all decisions must be respectedrespected

RetainerRetainer

Who first contacted the lawyer?Who first contacted the lawyer? Who is paying the bills?Who is paying the bills?

Nothing changes! Professional Nothing changes! Professional obligations are to the client obligations are to the client onlyonly. .

This, plus confidentiality requirements, This, plus confidentiality requirements, should be explained to family members should be explained to family members early on, especially if they are paying early on, especially if they are paying the retainerthe retainer

The CallThe Call

What do I do when I get a call from a What do I do when I get a call from a family member asking for family member asking for information which client has not information which client has not consented to sharing?consented to sharing?

Be politeBe polite Be persistentBe persistent

The CallThe Call

PolitePolite Understandable that sometimes Understandable that sometimes

family members are desperate for family members are desperate for information, and quite frustrated information, and quite frustrated when they can’t get itwhen they can’t get it

Understandable that a lawyer would Understandable that a lawyer would seem like a logical source, given seem like a logical source, given their intimate involvementtheir intimate involvement

The CallThe Call

PersistentPersistent ““I’m very sorry, but the rules I’m very sorry, but the rules

governing my profession prohibit me governing my profession prohibit me from discussing matters with from discussing matters with anyone.”anyone.”

Repeat as necessaryRepeat as necessary

ExceptionException

Rule 2.03(3): Where a lawyer believes upon Rule 2.03(3): Where a lawyer believes upon reasonable grounds that there is an imminent reasonable grounds that there is an imminent risk to an identifiable person or group of death risk to an identifiable person or group of death or serious bodily harm, including serious or serious bodily harm, including serious psychological harm that substantially interferes psychological harm that substantially interferes with health or well-being, the lawyer may with health or well-being, the lawyer may disclose, pursuant to a judicial order where disclose, pursuant to a judicial order where practicable, confidential information where it is practicable, confidential information where it is necessary to do so in order to prevent the necessary to do so in order to prevent the death or harm, but shall not disclose more death or harm, but shall not disclose more information than is required.information than is required.

ExceptionException

Imminent risk:Imminent risk: ‘‘May’ disclose, not ‘shall discloseMay’ disclose, not ‘shall disclose Reasonable grounds?Reasonable grounds? Very difficult decision for a lawyer to Very difficult decision for a lawyer to

make; we’re supposed to avoid seeing our make; we’re supposed to avoid seeing our clients get into more trouble at all costsclients get into more trouble at all costs

If risk to safety is credible, many lawyers If risk to safety is credible, many lawyers will breach confidentiality and try to will breach confidentiality and try to prevent harmprevent harm