legal ethics handbook - Nova Scotia Barristers' Society

(b) the anticipated crime involves violence. 10
LEGAL ETHICS HANDBOOK
5.15 However, a lawyer has a duty, when disclosure is required by law or by order of a court of competent
jurisdiction, not to divulge more information respecting a client than is specifically required and to assert the
client's privilege. 11
Duty of former public officer
5.16 A lawyer formerly in the service of any government or public agency who has possession of information
about a person, has a duty not to represent any client, other than the lawyer's former public employer, whose
interests are adverse to the person about whom the lawyer possesses information in circumstances in which the
information could be used to the material disadvantage of such person.
Notes
1. For codes of ethics dealing with this, see ABA-MR 1.6; Lund, B8.
" ... [F]or practical purposes any information received by a lawyer in his professional capacity concerning his
client's affairs is prima facie confidential unless it is already notorious or was received for the purpose of being
used publicly or otherwise disclosed in the conduct of the client's affairs.'' Ott v. Fleishman, [1983] 5 W.W.R. 721
at 723, 46 B.C.L.R. 321 at 323, 22 B.L.R. 57 at 60, per McEachern C.J.S.C. (S.C.).
2. " ... [I]t is absolutely necessary that a man, in order to prosecute his rights or defend himself ... should have
recourse to the assistance of professional lawyers, and ... equally necessary ... that he should be able to place
unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to
him should be kept secret, unless with his consent (for it is his privilege and not the privilege of the confidential
agent)...'' Anderson v. Bank of British Columbia (1876), 2 Ch.D. 644 at 649, 45 L.J. Ch. 449 at 451, per Jessell
M.R.
"To force a client to choose between legal representation without effective communication and legal
representation with all secrets revealed publicly is to deprive the client in some cases of the right to counsel." G.
MacKenzie, Lawyers & Ethics: Professional Responsibility and Discipline (Toronto: Carswell, 1993), at 3-2.
3. See M.M. Orkin, Legal Ethics: A Study of Professional Conduct (Toronto: Cartwright & Sons Ltd., 1957), at 83-
86.
Cf. E. Tollefson, "Privileged Communications in Canada (Common Law Provinces)" (1967), Proceedings of 4th
Int. Comp. Law Symp. 32 at 36-41.
See Canadian Broadcasting Corporation v. Amherst (Town), 1994 CanLII 4012, 133 N.S.R. (2d) 277, 48 A.C.W.S.
(3d) 1034 , 380 A.P.R. 277, 22 C.R.R. (2d) 129 (C.A.).; Coopers & Lybrand v. Tinmouth, N.S.S.C., S.H. 81772,
17 August 1994, Tidman J., S368/2 (as yet unreported) [solicitor-client privilege still attaches when the lawyer is
in-house counsel]; Nova Scotia Securities Commission v. W (1996), 152 N.S.R. (2d) 1(N.S.S.C.). Cf. Hartford
Accident and Indemnity Co. v. Maritime Life Assurance Co., 1996 CanLII 5208, 160 N.S.R. (2d) 161, 69 A.C.W.S.
(3d) 826, 473 A.P.R. 161, 9 C.P.C. (4th) 102 (S.C.).
4. For a code of ethics dealing with this, see Lund, B8.
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