Confidentiality Screens – Part II
In certain circumstances, lawyers are required to use confidentiality screens or other reasonable 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, namely transferring between law firms, representing competing clients under separate retainers, acting against a former firm client without consent, and providing short-term limited legal services to a pro bono client, are explained in greater detail in the April 2015 e-Bulletin Resources for Lawyers.
The commentary to rule 3.4-26 of the Rules of Professional Conduct (the Rules) sets out a series of guidelines for lawyers to consider in order to prevent the disclosure of confidential client information in the context of transfers between law firms. These guidelines may also be applied with necessary modifications to the other situations where establishing reasonable measures to prevent the disclosure of confidential information is required under the Rules:
- The screened lawyer should have no involvement in the new law firm’s representation of its client.
- The screened lawyer should not discuss the current matter or any information relating to the representation of the former client (the two may be identical) with anyone else in the new law firm.
- No member of the new law firm should discuss the current matter or the previous representation with the screened lawyer.
- The current matter should be discussed only within the limited group that is working on the matter.
- The files of the current client, including computer files, should be physically segregated from the new law firm’s regular filing system, specifically identified, and accessible only to those lawyers and support staff in the new law firm who are working on the matter or who require access for other specifically identified and approved reasons.
- No member of the new law firm should show the screened lawyer any documents relating to the current representation.
- The measures taken by the new law firm to screen the transferring lawyer should be stated in a written policy explained to all lawyers and support staff within the firm, supported by an admonition that violation of the policy will result in sanctions, up to and including dismissal.
- Appropriate law firm members should provide undertakings setting out that they have adhered to and will continue to adhere to all elements of the screen.
- The former client, or if the former client is represented in that matter by a lawyer, that lawyer, should be advised
- that the screened lawyer is now with the new law firm, which represents the current client; and
- of the measures adopted by the new law firm to ensure that there will be no disclosure of confidential information.
- The screened lawyer’s office or work station and that of the lawyer’s support staff should be located away from the offices or work stations of lawyers and support staff working on the matter.
- The screened lawyer should use associates and support staff different from those working on the current matter.
- In the case of law firms with multiple offices, consideration should be given to referring conduct of the matter to counsel in another office.
In the case of law firms with multiple offices, the degree of autonomy possessed by each office will be an important factor in determining what constitutes reasonable measures. For example, the various legal services units of a government, a corporation with separate regional legal departments, an interprovincial law firm, or a legal aid program may be able to demonstrate that, because of its institutional structure, reporting relationships, function, nature of work, and geography, relatively fewer measures are necessary to ensure the non-disclosure of client confidences. If it can be shown that, because of factors such as the above, lawyers in separate units, offices or departments do not work together with other lawyers in other units, offices or departments, this will be taken into account in the determination of what screening measures are reasonable.
It is not possible to offer a set of reasonable measures that will be appropriate in every case. Instead, where a lawyer seeks to implement reasonable measures, the lawyer must exercise professional judgment in determining what steps must be taken. Adoption of only some of the guidelines may be adequate in some cases, while adoption of them all may not be sufficient in others.
Law Society webcasting Convocation The Law Society will provide live online viewing of Convocation on May 28 as part of its commitment to continued transparency and accessibility. January, February and April Convocation meetings were also webcast and the archived versions are available for viewing from their respective pages on the Law Society’s website. These webcasts will help to determine the level of interest in Convocation and the value of providing an up-close look at Convocation and its consideration of policy issues. Check the May Convocation page a few days before Convocation for the link to the webcast.
Bencher Election 2015 The Law Society of Upper Canada has a new governing board for the 2015–19 bencher term, following the election of 40 lawyer benchers from a list of 95 candidates. Ontario lawyers elect 40 benchers every four years — 20 from inside Toronto and 20 from outside Toronto — to sit on the Law Society’s governing board, referred to as Convocation.
2014 Annual Report The Law Society’s online annual report details our performance for 2014 with messages, interactive charts, financial statements and updates on the organization’s strategic initiatives. Explore key statistics and read about 2014 highlights.
Introducing e-Courses Finally, a course that fits your schedule no matter what your schedule is! Set your own timetable with our new self‑paced e‑Courses, which are accessible 24/7, can be viewed on a computer or tablet, and entitle you to claim up to 1.5 hours of CPD Professionalism Hours. Whether you choose to take it slowly or push on ahead, the professionalism skills and concepts you learn along the way can be immediately applied in your practice. Want a preview? Watch our introductory video on the e-Course experience. Visit our website for new e-Courses coming soon.
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:
- June 4 – Access Awareness
- June 19 – National Aboriginal Heritage Month
- June 23 – Pride Week
This month marks the third year of the Law Society enhancing the Law Society Referral Service (LSRS) to ensure greater access to legal services. In May 2012, the service expanded to include paralegal subscribers, an online service, and trained Legal Information Officers to help identify legal issues, offer referrals and provide alternative resources, where appropriate. We have further evolved to an exclusively online service providing referrals 24 hours a day, and added a crisis line, intended for people who are unable to use the online service.
Celebrate our success by joining LSRS and become part of an important public service that has proven its value for more than 40 years. The potential benefits of joining LSRS include building your business, expanding your profile and contributing to your community.
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.
June 25 - Convocation
July 31 - LAWPRO 2015 Second Quarter Real Estate and Civil Litigation Levy Surcharge filings and applicable payments due.