The Duty of Confidentiality: Are Rules Made to Be Broken?

Author: Sean O'Neill Guest Blogger

“If you would keep your secret from an enemy, tell it not to a friend” is an often cited quote from Benjamin Franklin. But what does it mean? It could mean that our friends will eventually become our enemies and, thus, should not be trusted with our secrets. In contrast, it could mean that humankind has an inherent inability to keep secrets, or it could be interpreted simply as a commentary on our hardwired propensity for gossip. In any case, these interpretations have strong implications for the legal profession and, in particular, the duty of confidentiality legal professionals owe to their clients. They illustrate that the duty of confidentiality casts too wide of a net and exposes the otherwise ethical legal professional to regulatory sanction.

 The Law Society of Upper Canada’s (“LSUC”) Rules of Professional Conduct provide a blanket prohibition on the disclosure of any information about a client’s business and affairs to any other person. However, there is an identifiable disconnect between the rule and reality in the legal community. It has become accepted practice for lawyers to discuss “war stories” with other lawyers, to talk about that difficult client with their spouse, or to discuss the bizarre details of a case concluded long ago. As a result, it is time the Law Society stopped creating a profession of rule breakers. The Law Society’s Rules of Professional Conduct must be amended to create exceptions to the duty of confidentiality that would allow legal professionals to discuss details of a case that are in the public domain or would not name or otherwise identify a client.

The Public Domain Exception

The duty of confidentiality is an ethical principle that finds its regulatory authority in the LSUC Rules of Professional Conduct. In particular, Rule 2.03(1) provides that a lawyer may be reprimanded for disclosing any information about a client that was acquired in the course of the professional relationship. This broad and far reaching provision includes disclosure to a spouse or family member, information that is publicly known, and information that does not mention or otherwise identify the client. When read in its ordinary and grammatical sense, it catches such an expansive array of conduct that it appears to be impractical and certain to lead to some absurd consequences. For example, the Commentary on Rule 2.01(1) states that “the duty survives the professional relationship” and includes information that is in the public domain. Therefore, a law professor could be subject to sanction by the Law Society for discussing details of a case they were once involved in with students, even if those facts are readily available in textbooks and legal research databases. Such a consequence is surely not what the Law Society intended.

The basis for imposing a duty of confidentiality on legal professionals is to promote a trusting relationship with clients where communication will be free and open.[1] Building public trust in the legal system and the legal profession in general has been advanced as an additional goal.[2] Accordingly, one would assume that a rational connection exists between these laudable goals and the regulations prohibiting disclosure of information that is within the public domain. However, the connection does not exist. Information that is in the public domain (newspapers, law reports, court transcripts) is no longer expected by clients to be held in confidence by their lawyers. Nor is it expected by the public that lawyers will hold such information in confidence. As a result, lawyers are subject to reprimand for conduct that does nothing to disservice clients or put the legal profession into disrepute.

The Unidentifiable Client

The practice of law can be a stressful and demanding profession. Long hours, excessive workloads, and difficult clients all contribute to making law a taxing career. An ordinary mechanism for non-legal professionals to cope with such demands would be to talk to a colleague or a family member about their difficulties. However, the duty of confidentiality prohibits lawyers from discussing the “business and affairs” of their client with anyone. Since law is a client-centred profession, it is certain that much of the stress imposed on lawyers is related to the “business and affairs” of their clients. Predictably, mental health issues such as depression, vicarious trauma, and compassion fatigue are becoming more prevalent and gaining increased attention in the legal profession.

The Canadian Bar Association (“CBA”) suggests talking to colleagues in one’s own firm about such issues. However, this proposes challenges for individuals in solo and small firms who do not have colleagues to turn to. Alternatively, and perhaps surprisingly, the CBA suggests speaking with other legal professionals at “CBA subsection meetings.” This does not breach the rules, they argue, as long as client names are not divulged. This appears to be in direct contravention of Rule 2.03(1) which provides, in its commentary, that a lawyer should avoid such conversations even if the client is “not named or otherwise identified.” Such a contradiction between the body representing lawyers in Canada and the body regulating lawyers in Ontario only illustrates the absurdity of this regulation. To reconcile this ambiguity, and provide lawyers with the ability to discuss their work free of regulatory liability, the Law Society must read in an exception that allows lawyers to discuss their work in a way that would not reveal the identity of their clients.

Of course, allowing lawyers to vent with spouses or other family members poses its own risks. The case of Christopher Gossage, the lawyer for J.K. Rowling, is a good example. However, providing an exception that clearly indicates information that could identify a client will still lead to a reprimand adequately addresses these concerns.

A lawyer’s duty of confidentiality to his clients is a central tenant of the lawyer client relationship. It is certain that it must continue to be enforced and adhered to in the future. However, there remain many questions about its scope. Currently, the regulations imposing the duty are too broad and cast too wide of a net. As a result, behaviour that is common practice in the legal profession, such as the examples mentioned above, is subject to being penalized by the Law Society. This not only exposes otherwise ethical lawyers to substantial regulatory penalties, but also promotes disrespect for the LSUC Rules in general. In turn, this allows for a crucial role to be played by the Law Society to lessen the divide between the Rules and reality in the legal profession.

[1] Alice Woolley et al, Lawyers’ Ethics and Professional Regulation, 2d ed (Toronto: Lexis Nexis Canada, 2012) at 207.

[2] Ibid.

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.

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