In this current age of new digital media, confidentiality is paramount when engaging in financial transactions. There are no longer guarantees of security, only perceived security can truly be obtained. That said, when dealing with a lawyer, one should expect that the information they share is kept secret and tightly secured from others that may deliberately or inadvertently cause harm by becoming privy to these facts.
The duty of confidentiality requires lawyers to, at all times, hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship. [ Law Society of Ontario’s Rules of Professional Conduct (the “Rules ”), rule. 3.3-1].
Lawyers must not divulge any such information unless expressly or impliedly authorized by the client; required by law or by order of a tribunal of competent jurisdiction; required to provide the information to the Law Society; or otherwise permitted by rules 3.3-3 to 3.3-6 of the Rules.
There is however, one exception in very extreme cases, when lawyers are expected to divulge their client’s confidential information, which the article covers in detail.
In some very limited circumstances, disclosure of confidential information without the client’s consent may be permitted where the lawyer believes on reasonable grounds that there is an imminent risk of death or serious bodily harm and that the disclosure is necessary to prevent the death or harm [r. 3.3-3 of the Rules]. These situations will, however, be extremely rare.
The Supreme Court of Canada has considered the meaning of the words “serious bodily harm” in certain contexts, which may inform a lawyer’s assessment of whether disclosure of confidential information is permissible. In Smith v. Jones 1, the court observed that serious psychological harm may constitute serious bodily harm if it substantially interferes with the health or well-being of the individual.
In assessing whether disclosure of confidential information is permitted to prevent death or serious bodily harm, a lawyer should consider a number of factors, including:
- the likelihood that the potential injury will occur and its imminence;
- the apparent absence of any other feasible way to prevent the potential injury; and
- the circumstances under which the lawyer acquired the information of the client’s intent or prospective course of action.
- It is important to note that this rule is permissive and not mandatory. In other words, if the lawyer concludes that he or she is permitted to disclose confidential information under r. 3.3-3 of the Rules, the lawyer should determine if he or she wishes to disclose the confidential information. A lawyer who believes that disclosure may be warranted should seek legal advice. When practicable, a judicial order may be sought for disclosure.
Where a lawyer has disclosed confidential information under this rule, the lawyer should prepare a written note as soon as possible that includes the following:
- the date and time when the lawyer made the disclosure;
- the grounds in support of the lawyer’s decision to disclose the information;
- the harm the lawyer intended to prevent with the disclosure;
- the identity of the person who prompted the lawyer to disclose the information;
- the identity of the person or group of persons exposed to the harm;
- the content of the communication in which disclosure was made;
- the method of the communication used; and
- the identity of the person to whom the lawyer communicated the information to prevent the harm.
- In cases where the lawyer intends to disclose confidential information under rule 3.3-3 of the Rules, the lawyer must not disclose more confidential information than is required.
It shouldn’t come as a surprise that you could face serious implications if your sensitive information is put in the wrong hands. When you’re selecting a lawyer to handle your business and personal financial transactions, such as commercial or residential real estate purchase and sale agreements, make sure to check their online reviews and ask around within your existing network for a referral to a reliable legal professional.
If you have any questions or concerns regarding your real estate transactions, don’t hesitate to contact our firm for a free 30 minute consultation.