Confidentiality Screens – Part I
Under the Rules of Professional Conduct (the “Rules”), in certain circumstances, lawyers are required to use confidentiality screens or other adequate measures to prevent the disclosure of one client’s confidential information to another lawyer or paralegal at the lawyer’s firm who is acting for another client. These situations are set out below.
Competing Clients under Separate Retainers – rule 3.4-5[3.1]
Where a law firm is approached to assist two or more clients in separate retainers who are competing at the same time for the same opportunity (for example, competing bids in a corporate acquisition or competing applications for a single licence), the firm must take several steps in order to accept both retainers. In such a situation, because a conflict of interest exists, the law firm must obtain express consent from both clients to act under rule 3.4-2. Since competing retainers of this kind are not joint retainers, information received can be treated as confidential and not be disclosed to the client in the competing retainer. Different lawyers in the firm would represent each client. In order to ensure that information from each client can be treated as confidential and not be disclosed to the other client, the law firm must implement reasonable measures, including confidentiality screens, as discussed in rules 3.4-17 to 3.4-26 with any necessary modifications.
It is important to note that the competing retainer situation differs from a joint retainer scenario. Confidentiality screens are not permitted in a joint retainer because rule 3.4-5(b) does not permit treating information received in connection with the joint retainer as confidential so far as any of the joint clients are concerned (r. 3.4-5[3.1]).
Acting Against a Former Firm Client without Consent – rule 3.4-11
In the limited circumstances set out in the Rules, when a lawyer has acted for a former client and obtained confidential information relevant to a new matter, another lawyer in the lawyer’s firm may act in the new matter against the former client without the former client’s consent. In order to act in such cases, the Rules require that the law firm establish that it has taken adequate measures on a timely basis to ensure that there will be no risk of disclosure of the former client’s confidential information to the other lawyer having carriage of the new matter. Adequate measures include the use confidentiality screens as described in the commentary to rule 3.4-26.
Short-Term Limited Legal Services to Pro Bono Client – rule 3.4-16.4
A lawyer who is a partner, an associate, an employee or an employer of a lawyer providing short-term limited legal services to a pro bono client may act for other clients of the law firm whose interests are adverse to the pro bono client so long as adequate and timely measures are in place to ensure that no disclosure of the pro bono client’s confidential information is made to the lawyer acting for the other client(s). Confidential information obtained by a lawyer representing a pro bono client (as defined in r. 3.4-16.2) will not be imputed to the lawyer’s lawyer or paralegal partners, associates, or employees, or the lawyer’s non-lawyer or paralegal partners or associates in a multi-disciplinary partnership. As such, these individuals may continue to act for another client adverse in interest to the pro bono client who is obtaining or has obtained short-term limited legal services, and may act in future for another client adverse in interest to the pro bono client who is obtaining or has obtained short-term limited legal services. However, appropriate screening measures must be in place to prevent disclosure of confidential information relating to the client to the lawyer’s partners, associates, employees, or employer. These measures are set out in the commentary to rule 3.4-16.6 and rules 3.4-17 to 3.4-26 and their commentaries with necessary modifications.
Transferring Lawyer with Confidential Information Relevant to New Firm Matter – rule 3.4-20
Where a transferring lawyer actually possesses confidential information respecting the former client relevant to a matter that is the same as or related to a matter in which the former law firm represents its client that may prejudice the former client if disclosed to a member of the new law firm, the new law firm must cease its representation of its client in the matter except in limited circumstances. The new law firm may not continue its representation unless the former client consents to the new law firm’s continued representation of its client or the new law firm establishes that it is in the interests of justice that it act in the matter, having regard to all the relevant circumstances. One of these circumstances is the adequacy and timing of the measures taken to ensure that no disclosure of the former client’s confidential information to any member of the new law firm will occur.
Reasonable measures to ensure the non-disclosure of confidential information and some guidelines with respect to these measures are set out in rules 3.4-17 to 3.4-26 (in particular, in the commentary to rule 3.4-26[13-18]). For more information on the implementation of confidentiality screens, see Confidentiality Screens – Part II, which will be included in the May issue of the e-Bulletin Resources for Lawyers.
2015 Bencher Election - Voting Now Open By now, eligible voters — lawyers whose licences were not suspended as of April 7, 2015 — should have received information required to access the voting site by email from Computershare, the company providing the voting website. This information has also been sent by mail. Voting closes April 30, 2015, at 5:00 p.m. EDT.
Annual General Meeting The Law Society’s Annual General Meeting will be held at Osgoode Hall, 130 Queen Street West, Toronto, on Wednesday, May 13, 2015, beginning at 5:15 p.m. All members of the Law Society are invited to attend.
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Targeted Legal Services Event on May 12 TAG, Social Justice Tribunals Ontario and The Law Society of Upper Canada invite lawyers and paralegals to attend the second in a three-part series of unique programs on the interplay between targeted legal services and access to justice. Targeted legal services are directed at legal need where there are limited resources, and include legal services provided under a limited scope retainer. The second symposium in this series will build on the discussion at the first symposium by learning from “success stories” in the delivery of targeted legal services. There is no registration fee. Attend in person or by webcast. More information.
Become an active manager of your career. The Law Society, in partnership with over 55 law firms, has created an excellent resource to assist women lawyers and paralegals to advance in their careers. See the Justicia Project Career Advancement into Partnership – Associate Guide.
Law Society Referral Service (LSRS) now offering immediate online referrals The LSRS continues to support access to justice by connecting people who have a legal need with a lawyer or paralegal who can assist them. Now exclusively online, the LSRS offers immediate referrals at any time of the day. Trained legal professionals continue to assist callers in need through a toll free crisis line. The cost to join the service is $282.50 per year (including tax), and applicants who join now will have their fee pro-rated monthly.
Join us at Osgoode Hall for Equity Legal Education events. RSVP to email@example.com to attend a panel discussion and reception for these upcoming events:
- May 7 – Diverse Careers for Women
- May 12 – Asian South Asian Heritage Month
- June 4 – Access Awareness
- June 19 – National Aboriginal Heritage Month
- June 23 – Pride Week
April 23 - Convocation
April 30 - LAWPRO 2015 Real Estate and Civil Litigation Levy Surcharge annual exemption forms due.
April 30 - LAWPRO 2015 First Quarter Real Estate and Civil Litigation Levy Surcharge filings and applicable payments due.
April 30 - Bencher Election
May 13 - Law Society Annual General Meeting
May 28 - Convocation
May 30 - Final date to file the 2014 Lawyer Annual Report and Class L3 Licence Annual Report. Failure to file by this date will result in a $100 late fee and referral for suspension on or about this date.
May 31 - Final date to file the 2014 Multi-Discipline Partnership Report. Failure to file by this date will result in referral for suspension on or about this date.
May 31 - Final date to file the 2014 Affiliation Report. Failure to file by this date will result in referral for suspension on or about this date.