5.4 Confidentiality
Gemma Smyth
Confidentiality
Lawyers also have a positive duty to maintain their clients’ confidences. As a general matter, clients’ information is theirs. If lawyers disclose their clients’ information, it must be with consent. Some firms or clinics require clients to sign consents to disclose to allow them to speak with or write to others about a client matter. Even then, the lawyer must be careful to disclose only what is required.
There is a great deal of temptation to talk about issues experienced in practice, especially if they are difficult or salacious. Students must resist this, and in fact examine why they might be tempted to share their clients’ information. The onsite supervisor and perhaps workplace colleagues might be better placed to engage in discussions.
How a lawyer “talks about their clients” is a significant marker of how one approaches practice more generally. For example, emphasizing what clients are able to do (what they do well, what positive steps they have taken, their survival, their resilience, etc.) can be indicative of one’s approach to advocacy more generally.
Confidentiality takes on a particular role in an externship context. Because neither the academic supervisor nor fellow students are named in a retainer (unlike in a clinic context, where that typically occurs), students may not discuss confidential information in class or elsewhere. For the purposes of a seminar or other classroom context, students should not discuss information that would identify the client. In systemic advocacy contexts, the workplace might also not want details about an advocacy campaign shared until a particular launch date. If you are concerned about whether to share information or not, consult with your onsite supervisor.
LSO Rules
The Rules contain useful guidance about confidentiality, which is key to establishing trust in the solicitor-client relationship.There are exceptions to confidentiality set out in the Rules.
The bulk of discussion about confidentiality in the Rules of Professional Conduct is contained in Section 3.3.
3.3-1 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
(a) expressly or impliedly authorized by the client;
(b) required by law or by order of a tribunal of competent jurisdiction to do so;
(c) required to provide the information to the Law Society; or
(d) otherwise permitted by rules 3.3-2 to 3.3-6.
Exercises
The following video produced by the Faculty of Law, University of Ottawa sets out a mock example of how casual and salacious gossip about a confidential client matter can backfire.
Reflection Questions
- When and how did the lawyer (or law student) violate client confidentiality?
- What were the implications of the breach?
- What do think is the emotional or psychological reason that drove this student to violate confidentiality? Have you ever noticed this tendency in yourself or others? How can you curb this tendency or catch yourself?
Firms or clinics will have specific supports for students and lawyers. With some exceptions, lawyers may speak about client issues within the firm or clinic context. Students should also speak about cases with their supervisors. This should allow an outlet to discuss the legal matter, but the impacts it has on the student. There is more information about managing the sometimes difficult transition to working with clients in distress later in this text.
