Your secrets are safe

In practice, I am often asked, “This conversation is just between us, right?” This column is intended to answer that question.

Put simply, what you tell your lawyer is confidential.

This confidentiality is both a ‘rule of evidence’ (protected by the court) and a professional duty (mandatory to all lawyers).

First, regarding the ‘rule of evidence’, the communications that a client has with a lawyer for the purpose of receiving legal advice are privileged (and cannot be disclosed in court/in a witness stand). This rule of evidence, excluding such communications from being heard in court, is referred to as ‘Solicitor-Client Privilege’. By virtue of this privilege, a lawyer cannot disclose this information even after the client dies.

Outside of this ‘rule of evidence’, there is also a professional duty that lawyers hold ALL client information in strict confidence (and not just those communications that were made for purpose of giving/receiving legal advice). This duty is discussed in the Law Society of British Columbia’s Professional Conduct Handbook, chapter 5.

For ease of reference, chapter 5 states that when a lawyer is required to produce information under the Criminal Code, Income Tax Act, or some other legislation, the lawyer must resist disclosure and claim that the information is confidential.

If a lawyer breaches their professional duty (by, for example, telling their friends about client information), then he/she is punishable by the Law Society. The Law Society works diligently to protect the public from negligent lawyers and will severely penalize and even disbar lawyers who act against the public interest.

This professional duty (to keep secret client information) extends to even disclosing whether or not a lawyer is retained/acting for a particular person.

To illustrate, unless I am engaging in some activity in which I have to state the name of a client, such as interviewing witnesses or appearing in court, the fact that the particular client has retained me (or our firm) remains completely confidential. I tell some clients that if I see them in a grocery store, I won’t say, “Hi”. Of course, this is often up to the client.

There are exceptions, though, when a lawyer does not have to keep a client’s secrets.

For instance, communications that are intended to further a criminal purpose (such as asking for advice on how to commit a crime or a fraud) are not protected. Lawyers are not allowed to provide such advice, anyway. Such communications do not come within the scope of professional employment. This, however, does not apply to previous crimes committed, such as ‘client confessions’; these communications are confidential.

Another example is the ‘public safety exception’, which states that privilege does not apply if there is an imminent risk of serious bodily harm or death to someone. To explain, if someone tells a lawyer that they are going to kill/hurt someone, such communications/secrets are not safe/protected (and for good reason).

Compared to any other professional relationship, such as doctor/patient, teacher/student, pastor/church-goer, or accountant/client, the secrets that you tell your lawyer are the most protected against disclosure.

Bottom-line: your secrets are safe with your lawyer.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on on April 24, 2012: Your secrets are safe.

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