Asked Questions About the Duty of Confidentiality

1. What is the ethical duty of confidentiality?

Subject to limited exceptions, lawyers are required to protect and hold in strict (See s. 3.3
of the Rules of Professional Conduct ("Rules")) confidence all information concerning
the business and affairs of a client that the licensee obtains during the professional
relationship. This includes the fact that a licensee has been retained or consulted by a
client (See Commentary [5] of s. 3.3-1 of the Rules).
Confidentiality applies to all information (received orally or recorded in any form) that a
licensee possesses about a client regardless of:
* The source of the information
* The relevance of the information to the matter for which the licensee was retained, or
* Whether the information is publicly available or known to others.
- The scope of the duty of confidentiality is wider than the evidentiary rule of privilege.
2. To whom is confidentiality owed?
Lawyers owe a duty of confidentiality to every client (See definition of "client" in r. 1.1-
1 of the Rules), including clients of the firm for which the licensee is a partner or
associate, whether or not the licensee handles or works on the client’s matter.
The duty of confidentiality also extends to prospective clients (See Commentary [4] to r.
3.3-1 of the Rules)– it applies regardless of whether the licensee agrees to represent the
person or organization, or whether the licensee renders an account to them.
3. When does the duty of confidentiality begin and how long does it last?
The obligation to protect confidential client information is triggered as soon as a person
or organization first contacts the lawyer or paralegal about the provision of legal services.
The duty of confidentiality owed to clients continues indefinitely (See Commentary [3] to
r. 3.3-1 of the Rules), even after:
* The client’s matter is resolved,
* The professional relationship with the client has ended (regardless of the reason), or the
client dies.
4. What are the exceptions to confidentiality?
Lawyers are prohibited (paralegals) from disclosing confidential information unless:
* Expressly or impliedly authorized by the client
* Required by law or by order of a tribunal of competent jurisdiction to do so
* Required to provide the information to the Law Society of Ontario, or
* Otherwise permitted by the Rules of Professional Conduct or Paralegal Rules of
Conduct (collectively, the “Law Society’s Rules”).
Lawyers must disclose confidential information (See rr. 3.3-1(b) and 3.3-1.1 of the
Rules )when required by law, by an order of a tribunal of competent jurisdiction, or by
the Law Society, but they must not disclose more information than is required.
Lawyers may, but are not required to, disclose confidential information (See rr. 3.3-3 to
3.3-7 of the Rules) to:
* Prevent death or serious bodily harm
* Defend against certain allegations or claims
* Establish or collect their fees
* Secure legal advice, or
* Detect and resolve conflicts of interest.
The requirements (See s. 3.3 of the Rules) that must be satisfied for each of these
exceptions are set out in the Law Society’s Rules. Again, Lawyers should note that in all
cases, they should only be disclosing as much confidential information as is necessary.
 5. My client is threatening to harm themselves or another person. Can I disclose
this information and if so, to whom can it be disclosed?
You are permitted, but not required to disclose this information if you believe, on
reasonable grounds, that there is an imminent risk of death or serious bodily harm(In
Smith v. Jones [1999] 1 SCR 455, the Supreme Court of Canada considered the meaning
of the words serious bodily harm. This decision may help inform a licensee's assessment
of whether disclosure of confidential information is warranted.), including psychological
harm, and disclosure is necessary to prevent that death or harm.
-In assessing whether disclosure of confidential information is justified to prevent death
or serious bodily harm, you should consider the:
* Likelihood that the potential injury will occur and its imminence
* Apparent absence of any other feasible way to prevent the potential injury, and
* Circumstances under which you acquired information of the client’s intent or
prospective course of action.
How, when and to whom disclosure should be made will depend on the circumstances.
Lawyers considering disclosing confidential information under this exception are
encouraged to seek legal advice or contact the Practice Management Helpline for
guidance. Where practicable, Lawyers may consider obtaining a judicial order for
disclosure.
If you decide to disclose confidential information to prevent death or harm, you should
prepare a written note as soon as possible that includes the following information:
* The date and time of the disclosure
* The grounds supporting the licensee’s decision to disclose, including:
- the harm intended to be prevented
-the identity of the person who prompted the disclosure
-the identity of the person or group of persons exposed to the harm
- the identity of the person to whom the information was disclosed
* The content of the communication and method of communication used.
6. What should I do if the police contact me for information about my client?
Police inquiries about a client or allegations of illegal conduct by a client are not, in and
of themselves, an exception to the duty of confidentiality. If a lawyer or paralegal is
contacted by a police officer requesting information about a client, they must take care
not to disclose any information except as permitted under the Law Society’s Rules. Even
where Lawyers are permitted to disclose confidential client information, they must not
disclose more information than is necessary.
If the police attend at your law office with a search warrant, consult the Law Society’s
Guidelines for Law Office Searches for detailed guidance on what steps you should take.
7. What happens to the duty of confidentiality when my client dies?
The duty of confidentiality survives the death of a client. This means that subject to
limited exceptions, lawyers must continue to hold in strict confidence all information
relating to the business and affairs of the deceased client that was acquired during the
professional relationship. Lawyers who receive a third party request to disclose
confidential information relating to a deceased client must not disclose such information
unless the request falls within one of the exceptions to confidentiality. Even where
disclosure is permitted, Lawyers must not disclose more information than is required.

8. What happens to the duty of confidentiality when I change employment?

In general, lawyers must continue to hold in strict confidence all information related to
clients from their former employment. However, you may disclose (See r.3.3-7 of the
Rules) information necessary to detect and resolve conflicts of interest arising from your
change of employment(See r.3.4-17 to 3.4-23 of the Rules) or from changes in the
composition of the legal practice, as long as the information you disclose does not breach
privilege or prejudice the client.
This disclosure should be limited (See Commentary [3] and [4] to r.3.3-7 of the Rules)to
as few lawyers at the new firm as possible and should generally only include the name of
the persons or entities involved. If necessary, it may also include a summary of the
general issues and whether representation is ongoing.
The new firm should undertake(undertake:):
to limit the access to the disclosed information
not to use the information for any other purpose, and
return, destroy or store in a confidential manner the information provided after conflicts
are dealt with.
You should consider whether to address disclosure of confidential information in your
retainer agreement and obtain advance consent(Consent must be fully informed and
voluntary after disclosure of all relevant information. In some circumstances licensees
may need to further consent to disclose additional information, especially if the disclosure
would compromise privilege or otherwise prejudice the client. (see definition of
"consent" in r.1.1-1 and Commentary [6] to r. 3.3-7 of the Rules).

9. How can I ensure that client confidentiality is protected when working remotely?
Lawyers working remotely should take measures to manage or minimize the risks that
remote work environments can pose to client confidentiality. These risks include:
* increased vulnerability to cyber-attacks or data breaches
*sharing confidential information across unsecure platforms
*technical work disruptions, and
*offices that are shared with or accessible by others.
Lawyers are strongly encouraged to review and, if needed, adjust current workplace
policies and procedures to adequately address and mitigate these risks. In developing
these remote work practices, Lawyers should consider:
*Whether Lawyers or their employees require training on cybersecurity best practices
and procedures to better understand, identify, and avoid cybercrime dangers.
*Whether remote work devices, networks, and software have the latest security updates
to protect and maintain client confidentiality.
*How to advise clients of remote work communication practices, including identifying
the risks and measures taken to safeguard their confidential information.
*Whether to restrict the use of personal devices or equipment and personal email or
online accounts for work-related matters.
*How to protect confidentiality when using online communication platforms or cloud
storage services.
*How and under what conditions client property can be removed from the office.
*How client property should be used, secured, stored, managed, and returned.
*How to prevent the accidental loss or inadvertent disclosure of confidential information.

10. Do my confidentiality obligations prevent office support staff from performing

their work remotely?
- No, but as a lawyer or paralegal you are required to assume complete professional
responsibility for your practice, which includes ensuring that you and your employees
(whether licensee or non-licensee; full-time, part-time, or temporary) abide by the Law
Society’s Rules and by-laws. This duty includes ensuring you and your employees
understand the obligation to protect confidential client information from unauthorized
access or disclosure and know what steps to take to safeguard client documents against
loss, damage, or misuse. The obligation to maintain client confidentiality applies whether
you or your employees are working physically in the office or from a remote location.
-Remote work environments can present unique challenges for Lawyers in meeting their
practice management and professional responsibilities. To manage these challenges,
Lawyers should implement strategies to protect client confidentiality while working
remotely. For more information, Lawyers may wish to consult the Working
Remotely (These resources identify and discuss some of the key technology
considerations for lawyers who work remotely, employ a remote workforce, and/or
provide remote legal services. Resources are grouped by topic and type.) section of the
Law Society’s Technology Resource Centre.