Even people who do not know a lot
about what lawyers do usually understand the idea of lawyer and client
confidentiality.
The Code of Conduct for lawyers
states that we must hold in strict confidence all information that we learned in the course of the professional relationship. The only time a lawyer
can disclose such information is with the consent of the client or as required
by law.
The purpose behind the rule is that
a lawyer cannot properly represent her client unless the client can be
completely and fully candid. They must feel they can tell their lawyer
everything, and so what they tell their lawyer is protected.
The rule is very wide. In fact, a
lawyer is not allowed to disclose whether a person even is their client until the client agrees. The
confidentiality rule continues to exist even after the lawyer no longer acts
for the client.
Gossip about files has to be avoided, even if the client is not
specifically named. In a small town, it would not be hard to figure out who was
being discussed.
One interesting exception to the
rule is when disclosure of information is necessary to prevent a crime.
In
those cases, the lawyer is allowed to reveal what they know if it could prevent
a crime. For example, if a client states that they intend to steal a car, the
lawyer can contact the authorities if they choose. If, however, the crime could
involve violence, the lawyer is absolutely required to reveal the information
to the proper authorities. If the client says they intend to rob a bank, their
lawyer has to call the police. In these cases, protection of the public is more
important than the right to secrecy.
What if, on the other hand, a client confesses to a past crime? In
those cases, there is nothing that can be done to prevent the crime at that
point and so the lawyer is required to keep that information secret.
A more
difficult issue arises when the client tells their lawyer they just robbed a
bank and shot someone, and they hand over the gun.
The Paul Bernardo case brought this
scenario to light. Mr. Bernardo’s lawyer had possession of the incriminating
videotapes for 17 months while the murder investigation was underway, but did
not reveal them to the police. The police had failed to find them during their search of Mr. Bernardo's home. It is believed that had he turned them over to
the Crown Attorney’s office, Karla Homolka would not have been offered the plea bargain sentence she was given. That case caused a lot of
controversy and forced the Law Society of Upper Canada to review its rules on
lawyer and client confidentiality.
Lawyers also have a duty to ensure that their assistants and office
staff understand and adhere to the importance of the confidentiality rule.
The rule does not however apply to information that is public
knowledge. Most people are surprised to discover that much of the information
on court files is in fact public. A lawyer has to be very careful about what
information he or she puts in court documents as anyone could read them.
Another part of the rule is that
confidential information cannot be used by the lawyer to benefit him or her, or
anyone else. Although most lawyers could write fascinating books about their
cases, the Code specifically mentions that a lawyer who writes an autobiography
must avoid disclosing private information about clients without their consent
.
.
Lawyers have to stick
to writing fiction.
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