What are the exceptions to the duty of confidentiality and solicitor-client privilege?

Public safety exception: The Supreme Court of Canada and most law society codes of conduct recognize a public safety exception which may allow or require disclosure in cases where there is some impending harm to a person.

In Smith v. Jones, the Supreme Court held that public safety concerns set aside solicitor-client privilege when a lawyer reasonably believes that there is a clear, serious and imminent threat to public safety.

Similarly, law society codes of conduct provide public safety exceptions to the ethical duty of confidentiality. The Federation of Law Societies’ Model Code of Professional Conduct provides that “A lawyer may disclose confidential information, but must not disclose more information than is required, when the lawyer believes on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm.”

Look to your law society for the specific terms of the public safety exception as it applies to the duty of confidentiality, particularly the types of future harm covered (criminal activity, violence, serious physical harm, etc.) and the voluntary or mandatory nature of the lawyer’s responsibility.

Innocence of the accused exception: In R. v. McClure, the Supreme Court of Canada recognized an exception to solicitor-client privilege when the innocence of an accused is at stake. It interpreted this exception very strictly and the exception is likely to apply only in the rarest of circumstances. Information disclosed under the innocence of the accused exception cannot be used against the client whose lawyer disclosed the information.

There are no reported cases in which a McClure application has led to an order to disclose information covered by solicitor-client privilege.

Note that codes of conduct do not speak to the innocence at stake exception in the context of the duty of confidentiality. It is unclear whether the codes of conduct would prohibit disclosure in situations where the “innocence at stake” exception could apply.

Disclosure of information: fees and allegations against a lawyer: All law society codes of conduct permit a lawyer to disclose confidential information in order to establish or collect a fee or to defend oneself or one’s colleagues against any allegation involving a client’s affairs, be they criminal, civil, or regulatory (for example, a complaint to a law society). Whatever the situation, the lawyer must not disclose more information than the circumstances require.

However, there is no comparable exception to solicitor-client privilege. As a result, while codes of conduct may permit lawyers to use information usually protected by the ethical duty of confidentiality, lawyers may remain prohibited from disclosing information covered by solicitor-client privilege. When the client is not the adverse party, solicitor-client privilege may protect information even though the codes of conduct would allow its use. When the client is the adverse party, this clash between the duty of confidentiality and solicitor-client privilege would not arise.