February 28, 2018

Loose Lips Sink Cases: Confidentiality, Privilege, and the Implied Undertaking

Rebecca Buchanan

A lawyer has many duties to her client, one of which is to “…scrupulously guard, and not divulge or use for personal benefit, a client’s secrets or confidences” (Code of Professional Conduct for British Columbia).  A lawyer does not talk about her client or his case outside the courtroom or her office.  If she does, the consequences to the lawyer can be serious.  Likewise, if a client discusses the facts of his case with someone other than his lawyer, even with his own family members, the consequences for the client can be serious.  This blog post discusses the rules that apply to client information and document management and what can happen if those rules are not followed.

Confidentiality:  When a client comes to a lawyer for advice, it is typically because the client has a problem.  Perhaps he has been injured in an accident, is being sued by someone, or his insurance company will not give him benefits.  There is often another “party” involved, a person or company causing the problem.  In order to help the client, the lawyer needs to know all the facts, good and bad.  For the client to feel safe revealing the good and bad facts, he must be sure that the lawyer will keep the facts to herself.  For this reason, the lawyer is bound by a rule that requires her to keep her client’s information safe.  This rule is known as “confidentiality”.  Of course, a lawyer may disclose confidential information provided to her by her client when she reasonably believes there is an imminent risk of death or serious bodily harm and disclosure is necessary to prevent that death or harm.  Also, a lawyer owes a duty to the state to maintain its integrity and law, and cannot assist any person to act in any way contrary to the law.  In other words, a lawyer cannot attempt to deceive a trier of fact by offering false evidence or by misstating facts.

Privilege:  Conversations between a client and his lawyer are also protected by a rule known as “privilege”, which prevents the other party from obtaining the client’s facts without his consent.  Privilege can only be released or “waived” by the client.  For this reason, at all times, the client must take care to not waive privilege intentionally or by mistake.  This can happen if the client talks about the facts of his case with anyone other than his lawyer or a person on his lawyer’s team.  For example, if the client was injured while a passenger in a car driven by a relative and the plaintiff discusses his lawyer’s advice with that relative – that is a waiver of privilege.  If a client waives privilege, even by mistakenly revealing one or two privileged facts to another party, the court can order the client’s lawyer to turn over her whole file – including even privileged information – to that other party.  Obviously, that is not good for the client’s case.

Undertaking:  In addition to the facts that a client knows, he will also have or have access to documents that prove or disprove his case.  Where a client’s problem develops into litigation, the client must disclose all documents that any party to the action could use to prove or disprove their case.  Once disclosed to another party, these documents are bound by a rule called the “implied undertaking of confidentiality”.  This undertaking prevents the client and any other party to the litigation from using disclosed documents for any purpose other than the litigation.  If a party uses a document disclosed because of the litigation for another purpose – for example, sends an email about it, posts comments about it on the Internet, or discloses it to the press – that party breaks the implied undertaking of confidentiality rule.  A client who breaks the undertaking may be fined by the court.

In summary, maintaining confidentiality and privilege is an important part of a lawyer’s job and we are trained to do it.  It is just as important that the client:

  1. be assured that he can tell his lawyer all the facts of his case, good and bad, because those facts will be kept confidential;
  2. maintain privilege over his own facts by not discussing them with anyone other than his lawyer or her team (if he does, he may waive privilege over his whole file); and
  3. respect that documents disclosed by the other party to litigation are protected by an implied undertaking of confidentiality. They cannot be used by the client outside of the litigation.  If they are, the client may be fined.

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