Section 3.3 of the “Rules of Professional Conduct” of the Law Society of Ontario centers around the theme of confidentiality, a foundational ethical requirement pertaining to all sectors of law. It is a universal rule and it can have dire consequences if violated, including being sued or guilty of legal malpractice.
Clients must be able to speak with full candour to their lawyers in order to get the most accurate representation and that often requires sharing sensitive information, even more so in criminal cases. The duty of confidentiality allows full voluntary disclosure within the client-lawyer relationship. It is upheld unless otherwise authorized by the client, or if it meets one of the few exceptions.
A lawyer must be aware of a client's full situation in order to act accordingly and represent their client to the best of their abilities. The duty of confidentiality pertains to all forms of communication between the client and solicitor whether oral or written; a client’s personal information and all other information disclosed within the case throughout the relationship. There are numerous contracts similar to the duty of confidentiality used to hold both parties to secrecy within the field, including Non-Disclosure Agreement (NDA) and the evidentiary principle of attorney-client privilege.
NDA vs Attorney-Client Privilege vs Confidentiality Agreement
The three legal contracts have many similarities, but small differences that can change their use. An NDA is used more in unilateral agreements where one party is to refrain from disclosing information, although it is still used in mutually binding agreements between larger corporations. Confidentiality agreements are fairly common within workplaces as well and are used to protect corporations from unfavorable publicity or the exposing of trade secrets from prior employees. Both are used interchangeably nevertheless, depending on the corporations.
Attorney-client privilege is a more narrow principle in contrast to confidentiality. One of the biggest differences is regarding third party sources and information given outside the attorney-client relationship. Within a confidentiality agreement, information received by a third Persaud Hussain LLP Jazmine Noori party cannot be used in any way that may result in a disadvantage to the client; whereas attorney-client privilege does not protect such information. There may also be instances where communication may be exempt from the protection of attorney-client privilege. While the aforementioned varying agreements are not explicitly distinguished by law; there have been patterns of preferences through practising attorneys and their respective use.
Essentially, the duty of confidentiality as well as other legally binding contracts play an integral role in the work of all practising attorneys especially considering the magnitude of the impact on the lives of their clients. A breach in confidentiality can have large repercussions on all parties involved; more importantly, it is an infringement on an individual’s fundamental right to the privacy of their personal affairs.
As a student practicing at this firm, the Rules of Professional Conduct apply to me as I have access to the same information as an attorney; therefore the expectation to uphold the same principles apply. As such, it is understood that the information obtained is not shared amongst my personal circle of friends and family. This will ensure that I work within an ethical framework and negate any repercussions to the firm of Persaud Hussain LLP.
Works Cited:
“Chapter 3”,, online: Chapter 3 | Law Society of Ontario
“Defeat the confusion: Confidentiality v. non-disclosure”, (15 November 2017), online: EveryNDA
“Is there a difference between attorney-client privilege and confidentiality?”, (10 May 2021), online: The Law Dictionary
“Unilateral vs mutual ndas”, (12 December 2017), online: EveryNDA
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