CONFIDENTIALITY & PRIVELEGE

What are the Rules About Confidentiality for Lawyers?
A lawyer must keep all confidential information regarding their clients and the client's cases.  However, there are exceptions.  See our Privacy Policy for these exceptions.   These exceptions are very specific.  The information released is very limited.  So far as possible, the release of information should be managed to have minimum impact on the client.

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Lawyers are not allowed to simply gossip about clients and their cases  They cannot work for the opposing party in a case. They learn by sharing experiences, but must protect the client's identity.

What is "Privilege"?

Under the law, certain information is not only confidential but also privileged. A lawyer cannot be compelled by the law to disclose this information.  However, this applies only if all the following conditions are met regarding the communications:

• it must be private communications

• it must only be between a solicitor and client

• it must be for the purpose of providing legal services

 

If the communication occurs in public or if there are other persons present, then the communication may not be privileged. However, other persons may be present, without affecting privilege, if their involvement is necessary to the communication, such as an interpreter or a support person.

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Communications for purposes other than providing legal services are not protected. For example, if a lawyer conspires with a client to commit a crime, then there is no protection of privilege.

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Privilege only applies to communications (verbal or written).  If a client hits someone in front of a lawyer, it is not communication and there is no privilege.

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Privilege does not apply to physical evidence, such as a gun or a video tap.

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(This rule of law is necessary, or one could not talk to one's lawyer without fear it would be used against you in court. This would practically remove the right to a lawyer.)

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What are the Exceptions to Privilege?
A lawyer has a legal duty to advise the necessary person or agency, if all of the following conditions are met:

• there are reasonable grounds to believe that...

• there is a imminent risk of ...

• death or serious physical or psychological harm (including the client themselves)  ...

• to a person or an identifiable group.

 

The information released should be the minimum necessary to prevent the harm.

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Examples are serious threats:

• to kill the other party in the dispute

• to sexually assault someone

• to commit suicide

• to lock a young child in the basement for days

• to a plan to rob someone using force

 

There is an especially high duty to protect children. Everyone has a legal duty to report child abuse or neglect.

 

Because of the law of privilege, this is more limited for lawyers, but it still exists.

Note that this does not apply to past conduct, only the risk of future actions.

This is an extraordinary step for a lawyer to be make.  But it can be necessary.