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society news
‘ungovernability’? The CIC has been struggling with this question on
an increasing basis, it seems.
When one thinks of ungovernability, it is often in the context of a
lawyer who essentially refuses to communicate or cooperate with an
investigation, and demonstrates an attitude that he or she is unwilling
to accept the regulatory authority of the Society. However, we are
now seeing a number of lawyers who – while being courteous and
apparently cooperative during investigations – demonstrate an
apparent unwillingness or inability to adhere to the rules of conduct,
as evidenced by repeated minor or major complaints, and despite
staff and CIC intervention.
The Professional Responsibility Policies and Procedures Committee
considered these issues over a number of months, including the review
of current case law from other Canadian jurisdictions and case studies of
complaint files recently before the CIC. An amendment to Regulation
9.1 was approved by Council on September 19 to define ungovernability
and add “repeat offender” to the definition of professional misconduct.
See nsbs.org/regulations-under-lpa for details.
In concert with dealing with this troubling problem from a disciplinary
perspective is the equally important goal to reduce the occurrence of
repeat offences. In the spirit of being more proactive, risk-focused
and proportional, the CIC is committed to spending more time
speaking with repeat offenders and other lawyers in person, to help
identify and address the root causes of the offences.
Disclosing confidential information: Risk of death or
serious bodily harm
Since the coming into force of the new Code of Professional Conduct
in January 2012, the Society has received many calls from lawyers
who are struggling to determine whether their circumstances fall
within the public safety exception to the duty of confidentiality
found in rule 3.3-3 of the Code. The thought of breaching solicitorclient
privilege is tremendously difficult, and wading through the
competing obligations can be a significant ethical challenge.
The lawyer and client relationship depends on trust. Lawyers can
only fully represent their clients when all relevant information has
been disclosed. Clients can only communicate openly with their
lawyers when they feel completely secure and trust that their lawyer
will hold the matters discussed in strict confidence.
Sometimes, this trust relationship leads clients to disclose information
that causes a lawyer serious concern about the safety of the client or
others, and we have received many calls from lawyers seeking guidance
in these situations. Each situation must be carefully assessed according
to the circumstances of the particular situation, and each requires the
exercise of very sound professional judgment by the lawyer.
A lawyer owes a duty of confidentiality to every client and is prohibited
from disclosing any information acquired through the lawyer-client
relationship under rule 3.3-1 of the Code of Professional Conduct:
3.3-1 A lawyer at all times must hold in strict confidence all
information concerning the business and affairs of a client acquired
in the course of the professional relationship and must not divulge
any such information unless:
(a) expressly or impliedly authorized by the client;
(b) required by law or a court to do so;
(c) required to deliver the information to the Society, or
(d) otherwise permitted by this rule.
However, a limited exception to the prohibition on disclosing a
client’s confidential information exists under rule 3.3-3: Future
Harm/Public Safety Exception:
3.3-3 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.
This rule sets up three criteria, all of which must be present before
determining whether or not to disclose:
1. Reasonable grounds;
2. Imminent risk of death or serious bodily harm; and
3. The disclosure is necessary to prevent death or harm.
The following Commentary in the rule is designed to help lawyers
determine when to disclose:
[3] In assessing whether disclosure of confidential information is
justified to prevent death or serious bodily harm, a lawyer should
consider a number of factors, including:
(a) the likelihood that the potential injury will occur and its
imminence;
(b) the apparent absence of any other feasible way to prevent
the potential injury; and
(c) the circumstances under which the lawyer acquired the
information of the client’s intent or prospective course of
action.
[4] How and when disclosure should be made under this rule
will depend upon the circumstances. A lawyer who believes that
disclosure may be warranted should contact the Society for ethical
advice. When practicable and permitted, a judicial order may be
sought for disclosure.
If you need further guidance in deciding whether or not the
circumstances warrant disclosure, please contact the Society’s
Professional Responsibility staff. You may also seek advice from
another lawyer. Rule 3.3-6 of the Code allows you to disclose
confidential information to another lawyer in order to secure legal
or ethical advice.
It is not uncommon for clients involved in difficult personal and legal
situations to become very disconsolate. Clients may make comments
suggesting that they are going to harm themselves or another person(s)
as a result of their seemingly desperate situation. In such circumstances,
it is recommended that lawyers address the comments with their
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