CBA Solicitor-Client Privilege and Confidentiality FAQs

As part of its series of guidelines to supplement the CBA Code of Professional Conduct, the Ethics and Professional Responsibility Committee has published a document that has seventeen solicitor-client privilege and client confidentiality FAQs.

Lawyers have a duty, as is expressed in the various provincial rules of conduct, to hold client information in strict confidence, except as authorized by the client, required by law, or otherwise required by the rules. The duty of confidentiality is distinguished from the common law rule of solicitor-client privilege with respect to oral or written communications between client and lawyer. The duty of confidentiality is wider and applies without regard to the nature or source of the information or to the fact that others may share the knowledge.

While lawyers should refer to the specifics of their own provincial rules, these FAQs are helpful references to remind lawyers of the key considerations to be addressed when dealing with issues of solicitor-client privilege and confidentiality.

You can view the Solicitor-Client Privilege and Confidentiality FAQs in PDF format here.

The specific FAQs addressed are as follows (links to individual answers are here):

1. What are the exceptions to Solicitor-Client Privilege and the Duty of Confidentiality?
2. How do my confidentiality obligations affect the other members of my firm?
3. I have been jointly retained by two clients. One client has given me some information relating to the retainer and asked that I withhold it from the other. Can I set up confidentiality screens and keep the joint retainer?
4. What use can I make of information disclosed during discovery? Can I use it in other or subsequent litigation?
5. I am acting as defence counsel in criminal proceedings. What are my disclosure obligations to the prosecution?
6. My client wants to pay me in cash. May I accept a cash payment?
7. I have come into possession of evidence of a crime from a client. What do I do?
8. Can I disclose privileged information to the successor in title?
9. My client is bankrupt. What client information may I share with trustees in bankruptcy, the purchasers of my client’s business or successors in title?
10. The parents of a minor client I am representing have requested access to information about her. May I give it to them?
11. I am representing an elderly client whose competence to decide some matters for himself is deteriorating. His children have asked me to provide them with some information about him and to disclose confidential documents. What do I do?
12. I have received a request to disclose information pertaining to a former client’s will and power of attorney. How do I respond? May I charge the former client’s estate for the time spent reviewing notes to answer the request?
13. When does a “common interest” privilege exist and extend solicitor-client privilege to third parties?
    Is the “common interest privilege” exception the same in the United States as it is in Canada?
14. I have been retained as counsel to a special committee of directors of a corporation. I have been given access to corporate documents and am working closely with in-house counsel acting for the corporation. What do I do if there are adverse (or potentially adverse) interests or if adverse interests develop in the course of the matter?
15. My client fired me. She is now alleging that I forced her into a settlement when I was her counsel. She is not suing me. She is involved in enforcement proceedings with respect to the settlement.
16. The lawyer opposing my former client wants me to give evidence about the advice I gave her and the instructions I received leading up to the settlement. May I answer these questions?
17. How can I preserve solicitor-client privilege when communicating with my client using electronic media?