Secret Sharing
The first duty for every lawyer is to keep their client’s secrets. Only when the client can be certain her secrets will stay secret, can she feel safe to tell her lawyer everything.
Lawyer-client confidentiality is the only relationship specifically protected by law. Canada does not recognize confidentiality between: penitent and priest; patient and doctor or; client and counsellor. Some information has varying degrees of protection: advice to and discussions with the government; medical and counselling records are protected. But no other relationship except lawyer-client automatically protects all communications. We call that “solicitor-client privilege”.
If information is relevant to a legal case, the opposing side can force you to disclose it. Unless it’s a communication with your lawyer. But that “unless” has an “unless”: Unless you (the client) voluntarily reveal some of your lawyer-client secrets.
If you reveal one secret to one person (other than your lawyer), you may be forced to reveal all your secrets to everyone. No more lawyer-client confidentiality.
Let’s face it: pretty much everything you say to your lawyer somehow relates to the case. Why else are you talking to the lawyer? So, lawyer-client confidentiality protection is a huge deal. It’s taught in first-year law school. It’s emphasized throughout our continuing education, in our Canons of Ethics, and in thousands of court cases.
Except when the client voluntarily reveals secrets between herself and her lawyer. Even then, the law tries to protect the secret. If the client revealed the secret by mistake, or if the lawyer revealed the secret without being told to do so by the client, the court will protect the rest of the client’s secrets.
But what happens when the client reveals some of her secrets and the lawyer is right there, helping her do it? The client can’t really claim she didn’t know what she was doing. The lawyer can’t say she revealed the client’s secrets without the client saying to do so.
That’s exactly what happened in the recent case of FCAS v. CES https://canlii.ca/t/jxvlq (I hate these “alphabet” cases). Mom wanted to change some of her court documents. She claimed that she and her previous lawyer had made mistakes in the court documents. She filed an affidavit including some correspondence between them, apparently to show the “mistakes”. Her new lawyer Lolita Rudovica drafted the affidavit and application, blaming the previous lawyer. Mom’s affidavit included this: “I do not generally waive privilege between my former counsel and me and only provide this correspondence to prove that the errors in the pleadings were inadvertent errors on the part of my counsel and me.”
This is like saying: “I am only a little bit pregnant”.
Dad applied for an order forcing Mom to disclose all her communications with the lawyer and the whole previous lawyer’s file. He argued Mom had waived secrecy on some of her lawyer communications, and now had to release everything.
Justice Catherine Murray agreed with Dad. She ordered Mom to release all communications between Mom and her previous lawyer about: the children’s parentage, family violence, separation date, parenting time, and Mom’s drug tests – all within 3 weeks.
All the previous lawyer’s work leading up to this catastrophe: wasted. All the money Mom paid for it: wasted. All the money Mom paid the her new lawyer to make the foolish application: wasted. What will the files show? Is one of the children not Dad’s? Did Mom lie about saying Dad was violent? Does Mom have an ongoing drug habit? Did Mom lie to her previous lawyer? Who knows?
Well, on 14 July, Dad will.
At Clear Legal, we have been keeping our lips zipped since 1990.
