I was once told that the two most important decisions individuals will make in their lifetime are their choices of career and spouse. It has also been said that choice of career is the single most important ethical decision an individual will ever make. After all, becoming a part of a profession entails adhering to certain professional standards and subjecting yourself to certain situations. But regardless of what profession a person chooses to pursue, I argue that one should be able to seek advice from a spouse when facing an ethical dilemma, without being reprimanded.
The Law Society of Upper Canada (LSUC) Rules of Professional Conduct prohibits lawyers from seeking spousal advice if the matter requires disclosure of information protected by confidentiality. Lawyers seeking spousal advice and support when facing an ethical dilemma does not necessarily need to be recognized as an additional exception, but it should not be considered a breach of the privilege either.
Lawyers have a professional and ethical duty to protect entrusted information. Often known as “professional secret keepers”, lawyers are privy to the most intimate details of a client’s life. Sometimes knowledge of these details create ethical dilemmas for lawyers when they are deciding how to best represent their client. For a lawyer, protecting solicitor-client privilege (“the privilege”) is arguably the most important aspect of the job. The Supreme Court of Canada has recognized that the privilege is a “principle of fundamental importance to the administration of justice”. The privilege has also been recognized as “the highest privilege recognized by the courts”.
There are three exceptions that permit lawyers to disclose privileged information without fear of disciplinary action. Seeking spousal support does not need to be an additional exception, but it should not be a breach of the privilege either. The reality of the situation is that it probably happens all the time. Typically, a spouse is the one person that we trust the most; a best friend, confidant, and someone with whom we share our most intimate feelings. It seems irrational to think that any disclosure of confidential information to a spouse can result in disciplinary action from LSUC. This does not mean that lawyers should be allowed to disclose every detail to their spouses – the disclosure should also be within reason. Information disclosed should not be beyond what is required to obtain the spousal advice and support that the lawyer is seeking.
Challenges to defining the boundaries when seeking spousal advice
One is the context of the relationship itself. “Spousal privilege” is a privilege that only applies to marital relationships. Similar to solicitor-client privilege, spousal privilege exists so that married couples cannot be compelled to testify against each other, and any communication exchanged in the relationship is privileged. Should lawyers seeking spousal advice only be permitted to do so if they are identified as married? Should common-law relationships apply? One argument is that married or not, relationships can change over time. Privileged information cannot be entrusted with spouses because spouses owe no fiduciary duty to the client. They are not bound to the client the same way the lawyer is. If the relationship ends, the spouse has knowledge that can potentially destroy the client’s life. Another potential argument is that the spouse may accidentally reveal information about the client when talking with friends or family.
Addressing the challenges
The reality remains that disclosure of privileged information to a spouse is likely common practice. A lawyer who is not able to talk about an ethical dilemma with his/her spouse because of fear of disciplinary action might impact two things: a lawyer’s longevity in the profession, and his/her personal life. For instance, stress from the work itself and not being able to consult his/her spouse may impact enjoyment of the work; lawyers may burn out, become unhappy or lose their self-identity. These factors may impair the lawyers ability to do their job well, and thus impact the administration of justice overall. This stress can also impact a lawyer’s personal life. Even though spouses may not completely understand the responsibilities or obligations of a lawyer, seeking spousal advice and support may greatly reduce some of the daily stress for lawyers facing ethical dilemmas. Lawyers are subjected to certain professional standards, but being a part of the legal profession should not preclude lawyers from seeking spousal advice.
The Codes of Conduct for lawyers in other jurisdictions provides additional insight into confidentiality and the privilege. For example, the American Bar Association Model Rules of Professional Conduct Rule 1.6(b) states that disclosure of confidential information may be permitted:
(4) to secure legal advice about the lawyer’s compliance with these Rules.
The Federation of Law Societies of Canada Model Code of Professional Conduct Rule 3.3-3 – 3.3-6 also addresses the issue when disclosure of confidential information is permitted.
Rule 3.3-6 A lawyer may disclose confidential information to another lawyer to
secure legal or ethical advice about the lawyer’s proposed conduct.
The LSUC Rules of Professional Conduct do not include a rule similar to the above Rules. Both of these Model Rules state that it is not a breach of the privilege to seek advice. This should extend to seeking advice from spouses so in the event that a lawyer does seek advice from his/her spouse, it would not be a breach of the privilege. Again, this is separate from creating a recognized exception of justified or permitted disclosure.
The LSUC Rules of Professional Conduct should be modified to permit lawyers to disclose information protected by the privilege when seeking spousal advice. Disclosure should be done within reason, but the fear of disciplinary action from LSUC should be removed. The prohibition is impractical and unrealistic. Lawyers should be able to rely on their spouses for support, guidance, and advice when facing an ethical dilemma.
 Smith v Jones  1 SCR 455, 169 DLR (4th) 385 at para 35.
 Ibid at para 44.
The author is a first year student at the University of Ottawa Faculty of Law and wrote the essay for Professor Dodek’s course on Legal Ethics.