The topic of lawyer confidentiality often yields lively discussions when teaching legal ethics to law students. Some of this engagement flows from high-profile, attention-grabbing case studies like wrongful murder convictions, buried bodies, and concealed videotapes depicting horrific crimes. Even the more routine aspects of lawyer confidentiality, however, spark good conversation. For example, most students are curious about how common behaviours, like working outside the office, sending emails or using social media, may give rise to inadvertent confidentiality breaches.
Another topic that often interests students is whether lawyers can talk about client matters with spouses or significant others. At the end of a stressful day, can a lawyer decompress by sharing with their spouse a challenging interaction with a client or a hard legal question posed by a case? Can a lawyer who is excited about a new retainer tell the person they are dating about their new client? Prior to a British Columbia decision from earlier this year, Lessing (Re), 2022 LSBC 6, which is discussed in more detail below, there did not appear to be any Canadian case law to guide answers to these questions.
To be sure, the wording of professional codes of conduct clearly precludes disclosure of confidential information to spouses or significant others. The relevant rule states:
A lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information unless [certain listed exceptions apply]
(Rule 3.3-1 of the Federation of Law Societies of Canada’s Model Code of Professional Conduct)
In other words, a lawyer is prohibited from sharing any information about their legal work for a client at any time, with anyone. This general rule is subject to some narrow exceptions, none of which offer a confidentiality “free pass” for spouses or significant others. Indeed, the commentary to this rule clarifies that “a lawyer should avoid indiscreet conversations and other communications, even with the lawyer’s spouse or family, about a client’s affairs.”
But what do lawyers actually do? Do they adhere strictly to their confidentiality obligations and never talk about cases with spouses or significant others? A 2005 ABA Journal article quotes an American legal ethics scholar, saying “it’s my sense that that kind of pillow talk goes on all the time.” Aside from these sorts of anecdotal statements, however, there is little information about lawyer behaviour in this area. There appear to be no studies, for example, tracking what lawyers do (or do not) discuss with their spouses or significant others.
Moreover, this issue has not generally attracted discipline from lawyer regulators. A handful of cases exist, but, until the decision in Lessing from earlier this year, they were all from outside of Canada. For example, much media attention was paid to the 2013 disciplining of an English lawyer who told his wife’s friend that J.K. Rowling was the true author of the thriller The Cuckoo’s Calling. (Rowling had published the novel under a pseudonym, which was revealed to the world via the wife’s friend’s Twitter account after the lawyer shared the secret with her). In 2018, a lawyer couple (Thomas Holmes and Ashleigh Kerr) were disciplined by the Ohio Supreme Court for exchanging “more than a dozen e-mails in which they revealed client information to each other.” The disciplinary decision suggests that the purpose of these exchanges was to generate work efficiencies: “In general, Kerr forwarded to Holmes e-mails from her clients requesting legal documents. In response, Holmes forwarded to Kerr e-mails that he had exchanged with his clients that included similar documents he had prepared for them.” The factual contexts of these two cases take them somewhat outside a more straightforward hypothetical of a lawyer talking to a spouse about a client matter. In the English case, the lawyer did not disclose information to his wife but rather to his wife’s friend. Moreover, the involvement of a very famous client resulted in the breach becoming notorious. And the Ohio case not only involves two lawyers, but also a prolonged period of misconduct (almost two years) and the exchange of client work product to benefit the other lawyer’s practice.
The historical lack of disciplinary cases in Canada required speculation as to what approach a law society might take if a lawyer breached their duty of confidentiality by discussing client matters with a spouse or significant other. The absence of discipline did seem to suggest was this was not a priority enforcement area—regulators were not, for example, going to start proactively auditing what, exactly, lawyers were saying about their client cases at home. Moreover, absent aggravating circumstances, it seemed unlikely that lawyers would be sanctioned for such conversations even if somehow discovered. As Alice Woolley (now Justice Woolley) noted in the second edition of Understanding Lawyers’ Ethics in Canada, “A lawyer is unlikely to face any negative consequences if no harm arises from, for example, talking about a case with her intimate partner.”
The January 2022 decision in Lessing, however, provides an opportunity to test some of these assumptions. The decision, among other things, addressed confidentiality breaches arising from a lawyer sharing client emails, affidavits, and other file material with his then-spouse. The breaches were in relation to three family law clients. The material shared included sensitive medical, financial and otherwise personal information, as well as abuse allegations. These breaches came to light after the lawyer and his spouse separated and she made a complaint to the LSBC.
The lawyer admitted to sharing client information with his former spouse but claimed that his purpose “was so that she could print the documents for him on the home printer for his subsequent review.” His former spouse provided information contesting this explanation, noting, among other things, that the lawyer did not work from home, never advised her not to look at the client material and “would say to her words to the effect that ‘you have to look at this’, ‘you have to read this’ and ‘can you believe this’”. The decision also reports that, once, when emailing a client affidavit to his former spouse, the lawyer titled the email “Bedtime reading”.
The Tribunal rejected the lawyer’s explanation, finding that he “disclosed, intentionally for warped or callous purposes, the exceedingly sensitive, personal and confidential information of his clients” (para. 65). In analyzing the complaints, the Tribunal commented
Given the reference line “Bedtime reading”, and multiple instances of sending emails and affidavits or reading client files to PS, the Respondent’s actions are not accidental. Rather, the Respondent’s actions and possibly, motivations, are deeply concerning and a flagrant violation of the most private and personal confidences shared with him in his capacity as a lawyer for his clients. We note that his clients were vulnerable and going through very difficult personal experiences. The Respondent’s actions grossly betrayed the competence and compassion and respect required of him (at para 59).
The lack of evidence of specific harm to the clients involved did not preclude a finding that the lawyer committed “serious and reprehensible” professional misconduct. The Tribunal found that the lawyer’s “disclosure of confidential client information [harmed] the reputation of lawyers and the legal profession as a whole” and “[s]uch intentional disclosures erode the public confidence in lawyers, and are plainly a marked departure from the standard expected of the profession” (at para 65).
At the time of his hearing, the lawyer was a “former member” of the LSBC because of his non-payment of fees. He also had an extensive disciplinary history. In a subsequent February 2022 decision, the LSBC Tribunal declared the lawyer “ungovernable” and disbarred him. The lawyer did not appear at either the hearing involving his disbarment or the previous hearing involving his confidentiality breaches.
The Lessing decision is notable as a rare (possibly the only?) case where a Canadian law society has disciplined a lawyer for sharing client confidences with a spouse. It is also notable for confirming that, even in the absence of demonstrable harm to a client, breaching client confidentiality in such circumstances can still amount to professional misconduct.
At the same time, the significance of Lessing should not be overstated. This wasn’t an instance of a law society proactively investigating a lawyer’s practice and coming across poor practices. The complaint came to the LSBC’s door, so to speak. Moreover, as the Tribunal found, the breaches of confidentiality were not only intentional and repeated but also “for warped and callous purposes.” This case did not involve an inadvertent slip or carelessness.
Given the uniqueness of the Lessing case, it is unlikely that we will see a groundswell of similar decisions in the coming years. Nonetheless, this will be a helpful case to bring to the attention of students when discussing lawyer confidentiality in relation to spouses and significant others. Lessing is an important reminder that a lawyer’s duty to keep client confidences does not end when they are talking to their families or close confidants. Such a reminder is even more important in these pandemic years, when so many lawyers are working remotely. Home offices generate new possibilities for confidentiality breaches through overheard telephone or video conversations, open computer screens and printed documents left on desks or dining room tables. Moreover, as noted in a blog commenting on the Ohio case, “because of the increasing frequency in which we all do everything digitally…there are a number of ways that [disclosures to spouses] can surface into the light without anyone ever having a spouse voluntarily provide information any marital privilege notwithstanding.”
Ultimately, for law students and lawyers, the same general caution given prior to Lessing still holds: sharing confidential client information with a spouse or a significant other breaches the rules of professional conduct. Now, there is just an added notice that Canadian law societies can and will (in the certain cases) discipline lawyers for failing to meet their obligations in this respect.