Dear Readers: Yes and no! There are few sacrosanct privileged communication areas left in our Technological Society today. Every word and every action seem doomed to immediate Internet social media exposure. Someone seems to be always watching and listening, and it is not Big Brother we need to fear.

Our family and friends, mere acquaintances and even strangers hang of the precipice waiting for instant celebrity, [be it limited or worldwide]. Small nuggets of information may fall their way and they hurriedly strive to be the first to scoop the other by “posting the golden tidbits”. Today 24hr news is old news.

But what can be more hurtful than the dissemination of those confidences told under the guise of secrecy to the professional you chose to confide in? But unless you made those confidences to a priest/minister/man of the clergy, etc., and then under the seal of confession, you may not be as protected as you believe. The discussion of who is considered “clergy” will be left to another time.

As regards lawyers, and their employees, most people think that all information communicated to that lawyer benefits from professional secrecy. While this belief is almost always true, like everything in life, there are exceptions.

The Law applicable to Professional Secrecy can be found in the following Civil Code Articles:

Article 2858: The Court shall, even of its own motion, reject any evidence obtained under such circumstances that fundamental rights and freedoms are violated and whose use would tend to bring the administration of justice into disrepute.

Article 2859: The Court may not of its own motion raise a ground of inadmissibility resulting from the provisions of this chapter where a party who is present or represented has failed to raise it.

The latter criterion is not taken into account in the case of violation of the right of professional secrecy. In order to secure secrecy, the information related to your lawyer must be: related to the opinion/advice you are seeking, -and- the lawyer’s opinion/advice must be pertaining to your case.

Unlike in the rest of Canada, here in Quebec we went to the trouble of codifying Professional Secrecy in Article 9 of the Charter of Human Rights and Freedoms.

Article 9: Every person has a right to non-disclosure of confidential information.

No person bound to professional secrecy by law and no priest or other minister of religion may, even in judicial proceedings, disclose confidential information revealed to him by reason of his position or profession, unless he is authorized to do so by the person who confided such information to him or by an express provision of law.

The tribunal must, ex officio, ensure that professional secrecy is respected. Courts, as well as mere people, are bound to comply with this obligation even if they have to raise the issue themselves.

But, and there are always “buts”– the following examples of communications, normally covered by Professional Secrecy, demonstrate some exceptions to the rule:

  1. Communications must be made with a view to an eventual lawyer-client relationship – so do not start your confidential divulgation with a lawyer at a Christmas Cocktail Party, because the issue of proving that it was made in view of granting that lawyer a mandate may be difficult.
  2. If you bring a friend or family member to your lawyer-client meeting, you can be deemed to have waived confidentiality implicitly.
  3. If you ask your lawyer to communicate with third parties, for example, Revenue Quebec, the information relayed looses privilege.
  4. In family matters, where one party seeks to have their attorney fees paid by the other party [usually the husband], the invoices received by the person seeking payment are subject to being divulged, otherwise, such invoices are privileged.
  5. If you expressly waive privilege, your communications or information may be divulged, and which can occur by disclosing confidential information while testifying, or by alleging confidential information in your written proceedings.
  6. If you disclose the confidential information to a person not legally bound to professional secrecy privilege is lost, so ladies don’t tell your hairdresser what you want kept secret!
  7. If you seek to introduce communications such as negotiations between lawyers such as the contents of letters etc., privilege may be deemed waived.
  8. If you obtain a written legal opinion and give it, for example, to your accountant to read, your accountant may be called upon to divulge the opinion.
  9. If you undertake to furnish documentary information, for example while being questioned out of Court before a stenographer, the information in the documents looses privilege.

(the above is not an exhaustive list)

In order to waive privilege you must be the beneficiary of the privilege. For example, if your client-lawyer communication is privileged, your spouse cannot waive it.

If a legal opinion was requested by a Corporation, an employee of that corporation cannot waive privilege and divulge the opinion.

Given all the above, if someone posts their “confidential information” on-line (via Facebook, blog, LinkedIn, etc.), you will most likely be unable to claim this information as privileged because you related it afterword to your attorney in the context of your file, so be careful what you say or write and where and how you do. It can come back to haunt you!

Wishing you all a Very Merry Holiday Season, be it Christmas, Hanukkah or other. Linda Hammerschmid

Me Hammerschmid is a practicing Family Law Attorney since 1982 and Senior Partner at Hammerschmid & Associates, 1 Westmount Square, Suite 1290, and a founding and current member [past Secretary for 28 years] of The Family Law Association of Quebec. Frequent guest on CBC TV/Radio, CTV and CJAD on Family Law, Me Hammerschmid can be reached at 514-846-1013 or hammerschmid@vif.com.  Inquiries treated confidentially.

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