What happens if a lawyer breaks privilege

Also see: Read this before agreeing to sign a nondisclosure agreement. There are exceptions, however. But if one were to then inquire with a friend about hiring them, they might then expect that to be kept private.

Someone in this position should determine whether the privilege will apply before divulging information to a lawyer.

In rare circumstances, courts can order attorneys to reveal confidential information relayed by their clients. And as officers of the court, a lawyer is compelled to provide the requested information in such a situation. And when it comes to investigating a lawyer for a potential or alleged crime, the U.

Department of Justice advises that law enforcement must make special efforts to avoid breaking attorney-client privilege if it is unrelated to the case at hand. However, an attorney is not required to reveal whether a past crime has been committed. Yet not everything a client says falls under this privilege. The attorney-client privilege has the following limits and exceptions.

In Tennessee and in most states, the attorney-client privilege rule applies when a potential or actual client receives legal advice from a lawyer, as long as an attorney-client relationship exists and the client intended the communication to be private and confidential. A person cannot expect an attorney-client privilege to exist when asking a lawyer friend for advice at a cocktail party, for example.

The lawyer must be acting in a professional capacity at the time of the disclosure. The client has the power to waive the attorney-client privilege, not the attorney. Even after the client stops retaining the attorney or the case ends, the privilege remains in place. In most cases, the privilege stays even after the client dies — unless an exception applies. Physical evidence of a crime is not protected by solicitor-client privilege because it is not an oral or written communication, it is physical evidence.

However, anything that a client tells you about the evidence would be covered by the privilege so long as it is not considered a communication in furtherance of a future crime as discussed in Question 5. Coming into possession of physical evidence of a crime is fraught with legal and ethical dangers for you.

You should seek advice from your Law Society and possibly from counsel. If you retain physical evidence of a crime, you run the risk of being charged with obstruction of justice under section 2 Criminal Code , which makes it an offence to "willfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding", or possibly with being an accessory after the fact under section 23 1 of the Criminal Code.

In the leading case on this issue, the lawyer was charged with obstruction of justice: R. The court in Murray accepted that a lawyer may retain incriminating evidence for a reasonable time for examination and testing. Murray , Justice Gravely of the Ontario Superior Court outlined three "legally justifiable options" once counsel realizes that they are improperly in possession of incriminating physical evidence:.

Options two and three are only available to counsel when the client has already been charged with an offence and proceedings are underway. If you come into possession of physical evidence of a crime prior to proceedings being commenced against your client in relation to the evidence, the best course of action is for you to retain independent counsel and instruct that counsel to turn the evidence over to the Crown.

The communications between you and the independent counsel will be protected by solicitor-client privilege. This procedure will also enable the communications between your client and you regarding the evidence to remain privileged and may help to avoid the scenario where you could be called as a witness against your client.

The share sale is the easier case as the privilege remains with the corporation when it is sold. While control of the corporation may change, the corporation remains the client. Where assets are purchased, the issue turns on whether the purchaser is the successor-in-title. It has long been held that solicitor-client privilege flows through to successors-in-title.

The Ontario Superior Court outlined the principle as follows: "Solicitor and client privilege belonging to a predecessor in title can be asserted by his or her successor in title. Thus, the privilege of the original owner continues to a successor in title. The courts extend the privilege to the successors because their interests are in common with the predecessor and because the communications had been made in confidence.

In other words, solicitor-client privilege that is "owned" by a business owner passes to a successor-in-title to the business, and can be asserted and maintained by the subsequent owner. When you are acting on behalf of a client in bankruptcy, you still owe a duty of confidentiality to that client. As a general rule, solicitor-client privilege is maintained during bankruptcy proceedings and you cannot divulge privileged information to the trustee-in-bankruptcy without your bankrupt client's consent.

Although you may not be compelled to disclose privileged communications concerning your client in bankruptcy, you may have to disclose factual information about the bankrupt's affairs that are not considered communications between you and your client for the purpose of legal advice and, as such, protected by solicitor-client privilege. In , the Ontario Supreme Court held that a lawyer may be compelled to "disclose all information regarding the bankrupt's affairs, transactions and the whereabouts of his property, etc.

While the Bankruptcy and Insolvency Act does not directly address solicitor-client privilege or its waiver, case law tells us that privilege cannot be waived by the trustee and resides solely with the bankrupt. In the leading case on the application of the privilege in bankruptcy proceedings, 42 the Alberta Court of Appeal found that privileged communications were a "personal right" that fell outside of the general obligation of transfer of "property" as defined in section 2 of the Bankruptcy and Insolvency Act and confirmed that "the personal right of privilege is not altered by the BIA.

The minor child is your client. You owe her the duty of confidentiality and your communications with her for the purpose of giving her legal advice are covered by solicitor-client privilege.

Any decision regarding the disclosure of information and waiver of the privilege belongs to your minor client and not to her parents or to you as her lawyer.

This assumes that the minor child is legally competent to instruct counsel. See the end of this answer for situations in which the minor child is not competent to instruct counsel. Even if information is not covered by solicitor-client privilege, you have an ethical obligation to avoid disclosure of any of your client's affairs, even to members of her family.

The duties of confidentiality and loyalty towards a client, including a client who is a minor, ensure that the client can share information freely with you, and receive the best possible legal advice. You should explain both solicitor-client privilege and a lawyer's duties of confidentiality and loyalty to your client.

Have the conversation with your client without her parents present. Your client may chose to share information with her parents and may authorize you to do so, but this must clearly be her choice after she understands your duties to her.

When your client's parents are paying your fees, some information about billing and fees may need to be disclosed to them for practical reasons. The financial information you will need to share with her parents should be clearly outlined in the retainer agreement with the minor to avoid any misunderstandings. Child is not competent to instruct counsel: litigation - When a minor client is not competent to instruct counsel, because of age, lack of maturity, or disability, then a litigation guardian will have to be appointed for her by the court.

You will take instructions from the litigation guardian. Child is not competent to instruct counsel: non-litigation matters - For non-litigation matters, you must determine if a properly appointed guardian has been designated to deal with the child's affairs, including legal affairs. Unless there are relevant limitations on the power of that guardian, you will take instructions from the guardian. Your duties of loyalty and confidentiality to your client remain the same regardless of the legal competence of your client.

You cannot share confidential information with anyone, including family members, without the explicit or implicit authorization of your client or a court order or other legal authorization.

As well, the duty of confidentiality survives the end of the retainer and continues indefinitely, even after the death of a client. Should you believe that your client has developed reduced or questionable mental competency 46 , you still have a duty to maintain a normal lawyer and client relationship, as far as is reasonably possible. Lawyers for clients with reduced competency have an ethical obligation to ensure that their clients' interests are not abandoned and that their confidential relationship is not compromised by unauthorized disclosure.

When you reasonably believe that your client's impairment may have eroded the legal capacity to give instructions or enter into binding legal agreements, you should take steps to have a lawfully authorized representative appointed, such as a guardian, litigation guardian, or guardian ad litem.

This representative may be a family member. If these steps are necessary, you must not disclose more information than is required. Your duty of confidentiality protects all information about current and former clients. The death of a former client does not alter this duty of confidentiality which persists after the end of the retainer and survives the client's death. Any information that you obtain during the lawyer-client relationship may not be disclosed unless by judicial order; there are, however, some nuances in the wills context.

Because a will is not a solicitor-client communication and therefore not protected by privilege, the information contained in the will is not privileged. Nevertheless, the instructions relating to the drafting of the will are privileged communications. The privilege may only be waived by the client and not by the lawyer even after the client's death. Waiver of privilege exceptions : In cases involving wills and estates, however, the rules governing a waiver of privileged information have been relaxed.

To understand and give effect to the testator's intentions or to determine the existence of a will, the courts have accepted the disclosure of privileged communications. In Geffen v. Goodman Estate , 49 the Supreme Court of Canada extended the privilege to the deceased's heirs and successors in title and allowed the disclosure of privileged communications to them.

The Court's rationale was that it was in the interest of justice to determine the intentions of the deceased. In cases where there is confusion regarding the appropriate distribution of an estate, "there is no privilege to waive until the true intentions of the settlor are ascertained, which in turn requires the testimony of the solicitor to be received.

In these limited circumstances you may disclose confidential and privileged information while maintaining your duty of loyalty to your client. Fees to former client's estate: The billing arrangements for work that a lawyer may have to do for the estate of a deceased client is often outlined in the retainer agreement with the former client.

It usually envisages billing the estate. When you receive the initial request from the former client's estate, you should confirm that you will be charging for your time in responding to the request. The appropriate fee level is governed by the various law societies, all of which require that fees be fair and reasonable under the circumstances. You need to be certain of the identity of your client at the outset or you are vulnerable to an after-the-fact examination with a possible unfortunate result.

An approach to determining "who is the client? Primrose Drilling Ventures Ltd. The Alberta Court of Queen's Bench assessed the relationship between outside counsel and other corporate members based on both objective and subjective criteria.

The Court asked when a "reasonable person in the position of [the corporation] 51 with knowledge of all the facts would reasonably form the belief that [outside counsel] was acting for [the corporation].

Even with written confirmation from the directors and the corporation as to the identity of your client s , there are likely to be privilege and conflicts issues to navigate. Assuming that you are retained by the directors personally and not by the corporation, when the corporation shares information with you this could be considered a waiver of their confidentiality or solicitor-client privilege protections.

However, Canadian courts have shown a willingness to recognize a "common interest exception" to the rule of waiver which would likely apply in this case. If an adverse interest arises between the corporation and the directors, any information shared by one party with the other would likely have lost its privileged status and could be introduced in court proceedings as between the parties.

It might still be protected with respect to third parties. Solicitor-client privilege and the duty of confidentiality survive the end of the lawyer-client relationship. The client may waive the privilege or the duty in an expressed or implied way.

The test to establish that a client has waived the protection of the privilege or the duty of confidentiality is strict. The attorney-client privilege is a rule that preserves the confidentiality of communications between lawyers and clients.

Under that rule, attorneys may not divulge their clients' secrets, nor may others force them to. The purpose of the privilege is to encourage clients to openly share information with their lawyers and to let lawyers provide effective representation. Lawyers may not reveal oral or written communications with clients that clients reasonably expect to remain private. A lawyer who has received a client's confidences cannot repeat them to anyone outside the legal team without the client's consent.

In that sense, the privilege is the client's, not the lawyer's—the client can decide to forfeit or waive the privilege, but the lawyer cannot. The privilege generally stays in effect even after the attorney-client relationship ends, and even after the client dies. In other words, the lawyer can never divulge the client's secrets without the client's permission, unless some kind of exception see below applies.

United States v. White , F. United States , U. The attorney-client privilege is, strictly speaking, a rule of evidence. It prevents lawyers from testifying about, and from being forced to testify about, their clients' statements.

Independent of that privilege, lawyers also owe their clients a duty of confidentiality. The duty of confidentiality prevents lawyers from even informally discussing information related to their clients' cases with others. They must keep private almost all information related to representation of the client, even if that information didn't come from the client.