January 2015 e-Bulletin Resources for Lawyers

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Disclosure of Confidential Information to Prevent Death or Harm

 

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. [Rules of Professional Conduct (the "Rules"), rule. 3.3-1]. Lawyers must not divulge any such information unless such disclosure is 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].

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. Jonesi, 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. Depending on the circumstances, 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 intend 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.

i [1999] 1 S.C.R. 455.

Law Society to webcast Convocation   The Law Society will provide online viewing of the January, February and April 2015 Convocations as part of its commitment to continued transparency and accessibility. This series of webcasts will help to determine the level of the professions' interest in Convocation and the ongoing value of providing an up-close look at the way Convocation works and its consideration of policy issues. Check the relevant Convocation page on the Law Society's website a few days before Convocation for the link to that month's webcast.

Annual Reports available in LSUC Portal  Lawyers and paralegals may access the 2014 Annual Report through the LSUC Portal. The annual report is due March 31, 2015. Licensees who fail to file their annual report by May 30, 2015, will be charged a $100 late fee and be subject to administrative suspension.

Developing Strategies for Change: Addressing Challenges Faced by Racialized Licensees  As part of its ongoing efforts to promote equity, diversity and inclusiveness in Ontario's legal profession, The Law Society of Upper Canada's Challenges Faced by Racialized Licensees Working Group has prepared a consultation paper that outlines the challenges faced by racialized licensees at all career stages and includes a series of questions for the professions to consider and comment upon. Additional ideas are also welcome. Written submissions should be sent to the Law Society by March 1, 2015. Learning and Consultation programs will take place across the province and will include discussions about the lawyer and paralegal rules on discrimination and harassment and the importance of these rules to overall practice management. These programs will contain 1 Professionalism hour.

The amended Rules of Professional Conduct  came into effect on October 1, 2014. The following resources will assist lawyers with understanding and complying with the amended rules.

Call for nominations: 2015 Law Society Awards  The Law Society invites nominations for the Law Society awards. Awards for lawyers include the Law Society Medal, the Lincoln Alexander Award and the Laura Legge Award. Paralegals are eligible for the William J. Simpson Distinguished Paralegal Award. The deadline for nominations is January 30, 2015.

Business Development for Women Lawyers - a Justicia CPD.   The Women's Law Association of Ontario and The Law Society of Upper Canada are pleased to present an interactive lunch-time CPD on business development for women lawyers. Join us to learn about: self-promotion and developing a personal brand, how to create a marketing plan, how to effectively approach Business Development, and more.  This program will contain 2 professionalism hours.  Save the Date: February 4, 2014, 12:00 p.m. - 2:00 p.m., Osgoode Hall, 130 Queen St. W., Toronto.  Cost: $35.  A light lunch will be served.  Please register by January 30, 2015.

Bencher Election 2015  The next bencher election will be held on April 30, 2015. The Law Society of Upper Canada is mandated to govern the legal profession in the public interest. Benchers sit as members of Convocation to fulfill that mandate. More information about the election and becoming a candidate.

Targeted Legal Services & Access to Justice Webcast - TAG, Social Justice Tribunals Ontario and the Law Society are holding a unique program on February 3.  Interested lawyers and paralegals may watch the live webcast and hear from practitioners with extensive experience using limited scope retainers and participate in the development of new ideas about how they may be implemented in a variety of practice settings. This is the first of a three-part series on the role of limited scope retainers in enhancing access to justice. Register here for this free program.

Coming soon - Enhancements to the Lawyer and Paralegal Directory  Do you provide legal services to the public? A new Directory section in the LSUC Portal now lets you indicate up to eight areas of law or legal services that members of the public can consult you about. Very soon, members of the public will be able to search for this information in the Lawyer and Paralegal Directory.  When you visit the Portal to file your annual report, please visit the Directory tab to select the areas of law or legal services you provide to the public.

Important Dates

January 29 - Convocation

January 31 - Affiliation report due.

January 31 - Multi-Discipline Partnership report due.

January 31 - Certified Specialist annual fee and annual certification report due. Failure to submit report and payment by this date will result in revocation of certification.January 31 - Law Society Referral Service subscription fee due.

January 31 - LAWPRO 2014 Fourth Quarter Real Estate and Civil Litigation Levy Surcharge filings and applicable payments due.

February 5 -LAWPRO Lump Sum Payment Discount Deadline. Premium cheques must be dated and received by this date to qualify for the $50 discount on the 2015 insurance premium.

February 26 - Convocation

 

For more resources, visit the Manage Your Practice section under For Lawyers or phone 416-947-3315 or 1-800-668-7380 ext 3315. 

 

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