Daniel R. Medd Barrister & Solicitor Privacy and Communication

Rules of Professional Conduct Section Confidentiality Rule 2.03 (1): A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so. Rule 2.03 (1): A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so.

Rules of Professional Conduct Section Confidentiality Commentary: A lawyer cannot render effective professional service to the client unless there is full and unreserved communication between them. At the same time, the client must feel completely secure and entitled to proceed on the basis that, without any express request or stipulation on the client’s part, matters disclosed or discussed with the lawyer will be held in strict confidence. Commentary: A lawyer cannot render effective professional service to the client unless there is full and unreserved communication between them. At the same time, the client must feel completely secure and entitled to proceed on the basis that, without any express request or stipulation on the client’s part, matters disclosed or discussed with the lawyer will be held in strict confidence.

Rules of Professional Conduct Section Confidentiality Commentary (cont’d): The rule prohibits disclosure of confidential information because confidentiality and loyalty are fundamental to the relationship between a lawyer and client and legal advice cannot be given and justice cannot be done unless clients have a large measure of freedom to discuss their affairs with their lawyers. Commentary (cont’d): The rule prohibits disclosure of confidential information because confidentiality and loyalty are fundamental to the relationship between a lawyer and client and legal advice cannot be given and justice cannot be done unless clients have a large measure of freedom to discuss their affairs with their lawyers.

Rules of Professional Conduct Section Confidentiality Commentary (cont’d): A lawyer owes the duty of confidentiality to every client without exception and whether or not the client is a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them. Commentary (cont’d): A lawyer owes the duty of confidentiality to every client without exception and whether or not the client is a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.

Rules of Professional Conduct Section Confidentiality Not to be confused with “Privilege” Not to be confused with “Privilege” Evidentiary rule Evidentiary rule Anything arising out of the lawyer/client relationship (conversations, documents, etc.) are inadmissible in court Anything arising out of the lawyer/client relationship (conversations, documents, etc.) are inadmissible in court

Rules of Professional Conduct Section Confidentiality Should be explained to client at first interview Should be explained to client at first interview Encourage honesty Encourage honesty Implicit v. Express consent Implicit v. Express consent

Implied Consent Necessary to Fulfill Responsibilities as Lawyer Discussions with Crown Prosecutor, Court staff, Judges, etc. Discussions with Crown Prosecutor, Court staff, Judges, etc. Submissions in Court or before the Ontario Review Board Submissions in Court or before the Ontario Review Board Consultation with other lawyers, or support staff Consultation with other lawyers, or support staff

Implied Consent Can be limited Client can instruct not to share certain information with anybody Client can instruct not to share certain information with anybody Otherwise, lawyer uses judgment about what to share in client’s best interests Otherwise, lawyer uses judgment about what to share in client’s best interests

Express Consent Applies to Everyone Else Including family members Including family members Client should be specifically asked about sharing any information with family Client should be specifically asked about sharing any information with family

Role of Family Particularly complex relationship when client suffers from a mental illness Family involvement and support is often vital to improving the client’s situation Family involvement and support is often vital to improving the client’s situation Family relationships are often strained, or even unworkable, due to the illness Family relationships are often strained, or even unworkable, due to the illness

Role of Family Bail/Release: First issue that arises when someone is charged First issue that arises when someone is charged Is it safe to release them? Is it safe to release them? Will they come to Court? Will they come to Court? Where will they live? Where will they live? Under what terms? Under what terms? Medical or other appointments? Medical or other appointments? Who will be in charge of making sure they do everything the Court tells them to? Who will be in charge of making sure they do everything the Court tells them to?

Role of Family Surety Family members often best options Family members often best options Closest relationship Closest relationship Some knowledge of mental illness Some knowledge of mental illness Some experience dealing with symptoms Some experience dealing with symptoms Financial resources Financial resources Nobody can be forced to sign as surety Nobody can be forced to sign as surety

Role of Family Other benefits: Background information Background information Sentencing Sentencing Review Board Dispositions Review Board Dispositions

Role of Family All this is to say that it is often a good idea, and in the client’s best interest, for family members to become involved, and for information to be shared openly

Lawyer/Client Relationship Lawyer is one participant in the justice system with the primary responsibilities of: Championing the client’s best interests Championing the client’s best interests Following the client’s instructions, thereby asserting their wishes Following the client’s instructions, thereby asserting their wishes

Role of Client Certain decisions can only be made by the client: Whether to plead guilty or not guilty Whether to plead guilty or not guilty Whether to testify Whether to testify Sharing of information Sharing of information Other decisions left to the lawyer’s expertise: Which witnesses to call Which witnesses to call What questions to ask What questions to ask

Role of Client Relationship does not change if the client is mentally ill: Can only offer advice Can only offer advice Must follow the client’s instructions, even if they are irrational, and against their interests Must follow the client’s instructions, even if they are irrational, and against their interests Exception: client is unfit Exception: client is unfit

Role of Client Everybody’s different: Some clients want all the help they can get, and have open relationships with family members Some clients want all the help they can get, and have open relationships with family members Some want certain information or details to be withheld Some want certain information or details to be withheld Some, for whatever reason, are adamant that their family remain entirely in the dark Some, for whatever reason, are adamant that their family remain entirely in the dark

Role of Client In the end, all decisions must be respected

Retainer Who first contacted the lawyer? Who first contacted the lawyer? Who is paying the bills? Who is paying the bills? Nothing changes! Professional obligations are to the client only. This, plus confidentiality requirements, should be explained to family members early on, especially if they are paying the retainer This, plus confidentiality requirements, should be explained to family members early on, especially if they are paying the retainer

The Call What do I do when I get a call from a family member asking for information which client has not consented to sharing? Be polite Be polite Be persistent Be persistent

The Call Polite Understandable that sometimes family members are desperate for information, and quite frustrated when they can’t get it Understandable that sometimes family members are desperate for information, and quite frustrated when they can’t get it Understandable that a lawyer would seem like a logical source, given their intimate involvement Understandable that a lawyer would seem like a logical source, given their intimate involvement

The Call Persistent “I’m very sorry, but the rules governing my profession prohibit me from discussing matters with anyone.” “I’m very sorry, but the rules governing my profession prohibit me from discussing matters with anyone.” Repeat as necessary Repeat as necessary

Exception Rule 2.03(3): Where a lawyer believes upon reasonable grounds that there is an imminent risk to an identifiable person or group of death or serious bodily harm, including serious psychological harm that substantially interferes with health or well-being, the lawyer may disclose, pursuant to a judicial order where practicable, confidential information where it is necessary to do so in order to prevent the death or harm, but shall not disclose more information than is required.

Exception Imminent risk: ‘May’ disclose, not ‘shall disclose ‘May’ disclose, not ‘shall disclose Reasonable grounds? Reasonable grounds? Very difficult decision for a lawyer to make; we’re supposed to avoid seeing our clients get into more trouble at all costs Very difficult decision for a lawyer to make; we’re supposed to avoid seeing our clients get into more trouble at all costs If risk to safety is credible, many lawyers will breach confidentiality and try to prevent harm If risk to safety is credible, many lawyers will breach confidentiality and try to prevent harm