May or Shall? Mandatory Disclosure, the Rules of Professional Conduct, and Public Safety

Author: Peter Aadoson Guest Blogger

The Law Society of Upper Canada (LSUC) should make disclosure mandatory in situations where public safety is at risk. The current Rulesof Professional Conduct (Rules) focus on protecting confidentiality: there are only four categories of permitted disclosure; of these, all are optional except disclosure mandated by court order. While protecting client confidence is a laudable goal,the current framework does not adequately balance the needs of lawyers, clients, and third parties. A change from optional disclosure to mandatory disclosure for public safety issues will help to balance these needs. By changing the wording of Rule 2.03 (3) of the Rules from “may disclose” to “shall disclose” the LSUC will provide lawyers with guidance, force lawyers to consider their larger role in society, and protect the needs of third parties.

What Should I Do?

The optional nature of Rule 2.03 (3) does not provide direct guidance to lawyers. By listing only what may be done, this Rule leaves lawyers without any direction as to what should be done. It is relatively simple for lawyers to determine whether the information they possess can be disclosed: lawyers can disclose information when they reasonably believe that an imminent risk to an identifiable person or group exists and that disclosure is necessary to prevent death or harm. It is much harder for lawyers to decide what they should do once they have reached that conclusion. Information that does not fall within the exception must remain confidential. Difficulties arise when the information can be disclosed: the Rules give no guidance and leave lawyers with the full responsibility.

By permitting, but not obliging, lawyers to disclose, these Rules impose a heavy burden on lawyers who may be inexperienced or uncomfortable with balancing competing needs, forcing them to turn to alternative sources for advice or to attempt to avoid the issue. Mandatory disclosure in this limited circumstance would help to guide lawyers and provide them with a standard by which to judge their actions. They would know in advance what is expected of them and could prepare strategies and procedures to deal with and identify these difficult situations. Though positive obligations would limit the freedom of lawyers, the direction they would provide, both to individual lawyers and to the profession as a whole, is a substantial benefit.

Don’t Have To, So I Won’t …

The abdication of final responsibility by the LSUC may be a gesture of respect for the autonomy and integrity of lawyers, but it can lead to a moral apathy. Rather than encouraging lawyers to carefully consider the issue and seek advice, leaving the choice of action in their hands encourages a blanket policy of non-disclosure of confidential information, regardless of the circumstances. Rules permitting disclosure of information leave lawyers with the choice of not disclosing. This means that lawyers cannot be morally faulted for either disclosure or non-disclosure. Since whichever they choose is correct, lawyers can simply avoid the issue by adhering to a strong policy of client based advocacy and never disclose confidential information.

Such a policy is tempting because it allows lawyers to both comply with the letter of the Rules and avoid the stigma associated with breaches of confidence. This effectively avoids any ethical debate: lawyers can simply focus on protecting the interests of their client and know they are justified. They do not need to consider the impact of their decision on third parties or on society as a whole.

A system of rules which includes mandatory disclosure of certain information would remove the easy excuse of zealous advocacy and force lawyers to carefully consider the issues before them. Presented with information which could potentially neutralize an imminent risk of harm, lawyers will need to frame their actions to reflect obligations which go beyond the solicitor-client relationship. While this may result in a different form of moral apathy, with lawyers applying a new Rule 2.03 (3) formalistically rather than truly considering the larger ethical issues, at the very least the existence of positive obligations of disclosure will force lawyers to acknowledge their obligations to society at large and remain attentive to the needs of at-risk parties.

What About Everyone Else?

Equal acceptance of either disclosure or non-disclosure in situations where public safety is at risk protects only lawyers and does not adequately consider the needs of third parties. This framework disadvantages third parties who may be able to benefit from the information held as confidential. Given the nature of the exception provided in 2.03 (3), any disclosure permitted would necessarily help some identifiable group. Mandatory disclosure would serve this group while protecting lawyers from any possible repercussions. Lawyers would not need to face any stigma, and the disclosure would prevent harm. A positive obligation here would recognize the needs of both lawyers and third parties. Optional disclosure, on the other hand, allows lawyers the opportunity to privilege their personal risks and desires. Optional disclosure allows lawyers to avoid the issue and conceal the information to the detriment of vulnerable groups, all the while claiming that they are protecting confidentiality. The current system allows for vital information to be brought forward in limited circumstances, but does nothing to encourage or ensure its disclosure. The potential victim is not represented in the current system of confidentiality.

Optional disclosure rewards lawyers who focus on zealous advocacy to the detriment of third parties. The LSUC’s Rules provide lawyers with little guidance as to what they should do when disclosure is permitted and protect their right to continue to do nothing. Lawyers are free to disregard the needs of the public even when lives can be saved through disclosure. Replacing the optional disclosure rules in regards to public safety as articulated in Rule 2.03 (3) with mandatory disclosure rules would help to correct the in-balance and encourage moral debate. Such a substitution could serve as the necessary first step in the transformation of the current confidentiality and disclosure rules into a system which balances the rights of third parties more equally with those of clients and lawyers and recognizes the role that lawyers should aspire to as agents of justice.

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