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Know your rights: The difference between confidential and privileged information

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Criminal defence attorneys are bound by a duty of confidentiality not to discuss your case and personal information with others. However, while all privileged communications with your lawyer are confidential, not all confidential information is privileged.

That’s not to say your lawyer will spill your secrets – know that confidentiality is a duty, and solicitor-client privilege is your right. Instead, it means privileged information cannot be used against you in court, but confidential information can.

Many assume client privilege and confidentiality are the same, but they’re not. Understanding the difference improves client-attorney communication and ensures your case achieves the best outcome.

What is the duty of confidentiality?

The duty of confidentiality is an ethical obligation lawyers have to protect the information and communication shared by their clients during their professional relationships.

It extends to all information and continues after the lawyer-client relationship ends, whether relevant to the legal case or not, and regardless of whether a client has specifically requested the information be kept confidential.

What is solicitor-client privilege?

​Solicitor-client privilege is a legal principle that lets clients candidly discuss information about their case with a lawyer, knowing that the information they provide will remain protected from being disclosed in court or other legal proceedings.

The purpose is to facilitate “full and frank” communication in seeking and giving legal advice. The lawyer you speak with cannot talk to anyone about your conversations without explicit permission.

This applies to all communications about your case: in person, over the phone, over voicemail, email, or text message. Even communications with a legal assistant or lawyer within the firm are privileged.

Your lawyer’s legal and professional obligation to maintain client confidentiality and protect your privacy may also extend to third parties helping them prepare your case.

For example, if you need a forensic pathologist, conversations with them will be protected under solicitor-client privilege because the pathologist is acting as an agent for your lawyer.

The two types of solicitor-client privileges

Canada has two categories of legal privilege: Legal advice privilege and litigation privilege.

Legal advice privilege

Legal advice privilege ensures that any information exchanged between a lawyer and their client to seek or provide legal advice is confidential and cannot be disclosed. It extends to documents and communications created to prepare for existing or future litigation.

For instance, when talking with your criminal defence lawyer, you may disclose details about the alleged offence and your involvement. Because this communication is protected by legal advice privilege, it cannot be used as evidence against you.

Litigation privilege

Litigation privilege protects certain documents, communications, and information from being disclosed if created for or in anticipation of litigation. It’s designed to allow parties to investigate potential disputes without worry that investigations will be disclosed to the other side.

For example, suppose your defence attorney hires an expert witness to testify on your behalf during the trial. In that case, their communication and findings will be protected from being accessed by the prosecution.

Litigation privilege ensures both parties have equal rights to present their case free from manipulation from the opposing side. It ensures you a fair trial without compromising your defence strategy.

Crucial distinctions between confidential and privileged information

Confidential and privileged client information is protected by law, including the Canadian Bar Association Code of Professional Conduct and the rules of professional conduct for lawyers in each province.

Confidentiality is an ethical obligation lawyers have to protect their clients’ information. In contrast, solicitor-client privilege is a legal protection recognized by the Supreme Court that prevents forced legal disclosure of confidential information between lawyers and clients.

Failure to respect confidential and privileged communication undermines a client’s confidence in their lawyer. Violation of either can result in disciplinary action for the lawyer and negatively impact the outcome of a case.

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How confidential and privileged information work together

Let’s pretend John is a criminal defence attorney defending his client, David, charged with murdering Susan. She was found dead in David’s apartment, and he’s the prime suspect.

In this case, confidential information would be any details or evidence that John learns from David, such as his relationships with Susan, his alibi, and his version of events. John can use this confidential information in court to defend David.

Privileged information, however, refers to communication between John and David made in confidence to seek legal advice. For example, perhaps David tells John he has a history of violent outbursts.

In other words, admitting to prior violence may make it seem more likely that he could have murdered Susan. However, this information cannot be shared with the court unless David consents.

As his defence attorney, John may decide David must establish an alibi, such as finding a witness to testify he was not home during the time of the murder. You can see how criminal defence attorneys use confidential and privileged information to build their cases.

The limits of solicitor-client privilege

Privilege remains unless you consent to its waiver or the following circumstances apply:

Legal advice

Only confidential information related to legal advice qualifies as privileged solicitor-client information. A casual conversation with your lawyer about your family business unrelated to your case may not be protected.

It’s also important to know that legal advice privilege only applies when communications are made in confidence. If you share information about your case with a family member or friend, the privilege no longer applies and can be used in court.

“Facts” or “physical objects”

Solicitor-client privilege protects communication, not facts or physical objects. Your lawyer cannot disclose details you have communicated with them, but they may be required to share factual information or evidence in the public domain.

For instance, if a client admits to committing a murder, their lawyer is not legally obligated to disclose it. However, if publicly available CCTV footage incriminates the client, their lawyer may be required to present this factual evidence in court.

Past and future crimes

Solicitor-client privilege does not extend to protecting discussions involving future criminal activities or seeking legal advice on carrying out a crime. For example, you cannot ask your lawyer where is best to hide a murder weapon.

Nevertheless, seeking your lawyer’s opinion on whether specific actions may be illegal is permissible. The intention behind your communication is crucial in determining the privilege’s applicability.

Such discussions are protected if you seek legal guidance to ensure you do not mistakenly commit a crime and act within the law’s boundaries. However, if you intend to evade the criminal act, then the privilege does not apply.

Public safety and innocence

In rare cases, solicitor-client privilege can be overridden to prevent serious bodily harm, death, or threats to personal or public safety. For instance, if a client says they’re planning a terrorist attack, the lawyer may revoke solicitor-client privilege.

Similarly, if a client tells their attorney they are planning to harm someone, the potential victim’s safety outweighs the protection of confidential communication. Yet, even in these circumstances, the disclosure is limited to the minimum required to protect the person/people from harm.

Additionally, if a lawyer has information proving someone else’s innocence, and there is no other way to obtain such information, then a client’s privilege may be waived.

Fees and charges against lawyers

Confidentiality can be relinquished when a lawyer needs to receive payment or protect themselves against accusations made by a client. It can also waived if a law society needs pertinent information to defend an attorney facing allegations.

Client confidentiality vs. public knowledge

There have been landmark cases, such as Stewart v. Canadian Broadcasting Corp., where what constitutes public knowledge vs client confidentiality has come under legal scrutiny.

In Ontario, well-known criminal defence attorney Edward Greenspan was taken to court for breaching his “ongoing fiduciary duty of loyalty” to a former client in 1997 by narrating a television episode about his client’s case.

His client argued that despite the case being public knowledge, broadcasting it in the public domain twelve years later would negatively affect appeals and was not in his best interests as Greenspan’s client.

The court awarded the client $2,500 damages and ordered Greenspan to pay back $3,250 profit but held that there was no breach of contract since the episode was created using information in public records.

Yet, today, according to The Law Society of Ontario, “[the] duty of confidentiality applies irrespective of who provides the information and whether others share the same knowledge. The duty is owed to every client without exception, including prospective clients, current clients, and former clients. It also survives the client’s death.”

Consult with a criminal defence attorney today

While most communications between you and your lawyer will never be revealed, you must understand the difference between confidentiality and privilege to avoid misunderstandings and build a strong relationship with your attorney.

If you are currently facing criminal charges and need a lawyer to protect your future, Posner Craig Stein, LLP, can help. Our respected Ontario firm will help you achieve the best possible outcome while strictly upholding confidentiality and solicitor-client privileges.

Contact us today to discuss your case.