The first rule of the privilege is: you do not talk about the privilege. In this way, the legal profession seems quite reminiscent of ‘Fight Club.’ Rather than guarding a recreational fighting ring however, the legal profession chooses to concern itself with protecting the communications of clients and their lawyers. The purpose of this obligation placed on legal professionals is to ensure that clients feel they can actively trust their lawyer, and thus be as candid as possible – which subsequently allows their lawyer to best advise them. Does this obligation truly accomplish the goal, or does it in actuality undermine society’s trust in lawyers? Due to unfortunate public misconceptions it can sometimes seem that respecting the rules and exclusions relating to privileged information is a no-win situation for lawyers in the eyes of society.
While often confused as being one and the same, confidentiality and privilege are actually two separate concepts within the legal profession. Confidentiality refers to the ethical principle of keeping all client information learned through the professional relationship private. On the other hand, solicitor-client privilege refers only to private conversations that take place between a legal professional and their client. Maintaining privilege is a legal duty owed to the client. Rule 2.03(1) of the Law Society of Upper Canada Rules of Professional Conduct states that a lawyer must keep all information concerning the business and affairs of their client in strict confidence, and shall not divulge any such information unless instructed to do so by the client, or required by law.
While a legal obligation of the profession, solicitor-client privilege is not without its criticisms. Often times, clients will divulge information to their lawyers that are of an incredibly sensitive nature and would offend societal values and norms. When the public learns that a lawyer was aware of such matters, there is usually a backlash against the lawyer as the public expresses their disapproval with the information not being divulged. This was well illustrated when criminal defence lawyer, Ken Murray retrieved the now infamous videotapes from the house of his client, Paul Bernardo, and failed to immediately disclose their existence. Regardless of the general disapproval of society, not divulging privileged information is a key job requirement of the legal professional. Yet, society tends to have the misconception that lawyers are at liberty to use their discretion and divulge such information in all situations where it might be in the public interest. Unfortunately, this can result in a lack of trust in the profession as the general public may be led to believe that lawyers are able to divulge sensitive information but actively choose not to, and thereby desire to advance the malevolent or criminal actions of their clients.
While upholding solicitor-client privilege is a strict obligation, this privilege is not absolute. Rather, it is subject to exclusions and exceptions. Pursuant to rule 2.03(3) of the Rules of Professional Conduct, safety of the public is deemed to be of such high importance that it can warrant setting aside privilege if necessary. This was demonstrated in Descôteaux v. Mierzwinski , when the court was explicit that communications made for the purpose of engaging in a crime or fraud are not privileged, nor does a lawyer have a duty to keep them confidential.
Considering the criticisms society has for lawyers who fail to divulge sensitive or offensive information received under privilege, one might believe that divulging privileged information under the appropriate situations and parameters would be not only widely accepted, but welcomed; especially seeing as how the profession has laid out specific rules and policy considerations that dictate when a lawyer may need to divulge sensitive information. However, there exists an opposite to those who believe that lawyers should always divulge information for the public good: Those who view lawyers as society’s ‘ultimate secret keepers’. As a result, there is the belief among some that a client can divulge absolutely anything to their lawyer, even their intention of committing a violent crime, and the lawyer can not share this information, without exception.
This misconception has been perpetuated through various references within popular culture. For example, the television series Breaking Bad depicted Saul Goodman, an extremely unethical criminal lawyer who actively assisted his clients in various illegal activities while assuring them of confidentiality. This representation was rather explicitly made through the quote, “You want [solicitor-client] privilege don’t you? So that everything you say is strictly between us…put a dollar in my pocket and make it official”. Such depictions greatly misrepresent the realities of privilege obligations.
To the average layperson unfamiliar with the legal profession and its ethical standards, such behaviours can be interpreted as normative. Based on the number of lawyer jokes depicting legal professionals as less than ethical, it is no secret that lawyers do not always enjoy a reputation for being of good character. This negative reputation combined with misconceptions perpetuated by popular culture can set up the unrealistic expectation that a lawyer can be ‘bought’ to abandon their ethical obligations. As a result, when a legal professional does legally divulge otherwise privileged information, individuals with false expectations as to what privilege obligations entail may be led to lack trust in lawyers. Their unrealistic expectations are shattered and they are left with an unclear picture of the solicitor-client relationship, and the privilege it affords.
Ultimately, it seems that legal professionals are placed in a lose-lose situation when it comes to attempting to simultaneously upholding privilege and public trust. While the profession requires solicitor-client privilege in order to maintain public trust, this aspiration is based on the assumption that there exists one general societal consensus as to what the public expects of lawyers. As it currently stands, when dealing with privileged information, it appears lawyers are ‘damned if they do, damned if they don’t’.
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.