of self regulation? - The Law Society of Upper Canada

information only where necessary to prevent a crime involving death or serious bodily
harm. 18 What is striking is that while all jurisdictions in some way recognize a serious
violent crime as reason enough to breach confidentiality, few jurisdictions permit
disclosure to prevent serious financial harm, and none require it. Although revisions to
the Ontario rules recognize that disclosure might be necessary to prevent non-criminal
future harm, they still focus on serious bodily harm or death. This is particularly
surprising in light of the numerous high-profile instances of financial mismanagement
which have come to light in recent years, which routinely involve lawyers at some level,
and which in some cases have cost investors their entire life savings. Surely a loss of your
employment and your retirement income is more catastrophic than broken bones or many
other forms of bodily harm
As Proulx and Layton note, the exclusion of financial harm has not been an
accident. In the recent Ontario reforms which broadened permissive disclosure to include
non-criminal harm, the idea of including financial and other “non-physical harm” was
discussed and rejected. 19 The value judgment, then, is clear: in most jurisdictions, even
catastrophic financial harm to a third party does not outweigh the public interest in
maintaining the sanctity of the solicitor-client relationship. This principle is even harder
to defend when compared to the “self-interest” exception, included in all codes of
conduct, which allows a lawyer to reveal such confidences as are necessary to collect a
harm exception across the country, see Michel Proulx and David Layton, Ethics and Canadian Criminal
Law (Toronto: Irwin Law, 2001) 230-250 [Proulx and Layton].
18 Law Society of British Columbia, Professional Conduct Handbook , Ch. 5, R. 5.12 online:
.
19 Proulx and Layton, supra note 17 at 241, citing D. Layton, “The Public Safety Exception: Confusing
Confidentiality, Privilege and Ethics” (2001) 6 Can. Crim. L. Rev. 209.
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