Overview

Confidentiality is an issue that requires constant consideration by the ethical lawyer, as "almost all of the most intractable problems of legal ethics, including most conflict of interest problems, are at bottom confidentiality problems" (MacKenzie, Lawyers & Ethics, at 3-1). While it does include the evidentiary rules of solicitor-client privilege and litigation privilege, confidentiality is far broader in scope. Like most ethical issues, confidentiality is addressed in the Rules of Professional Conduct.

This list features primarily Canadian and U.S. materials. However, the principles of confidentiality and privilege are based in the common law tradition, and materials from the U.K. and other common law nations may prove helpful to the researcher. This pathfinder is intended as a place to start investigation on the topic. It is organized by subject into 5 parts:

1. General resources on confidentiality
2. Solicitor-client and litigation privilege generally
3. Solicitor-client privilege in civil matters
4. Solicitor-client privilege and criminal law
5. Topical discussions (materials related to specific areas of law)

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Part A: General Resources on Confidentiality

These materials contain a wide variety of information on the general topic of confidentiality and the practice of law. Many of these works address the general topic of legal ethics, as the maintenance and breach of confidentiality are ethical concerns.

Dodek, Adam M., ed. Canadian Legal Practice: A Guide for the 21st Century, looseleaf (Markham, Ont.: LexisNexis, 2009-). (KF 300 C367 2009)

Canadian. Looseleaf. Index has numerous entries under "Confidentiality" such as advertising.

Flenley, William and Tom Leech, Solicitors' Negligence and Liability, 2nd ed. (Haywards Heath, West Sussex: Tottel Publishing, 2008). (KF 313 F54 2008)

British. Textbook.

MacKenzie, Gavin, Lawyers and Ethics: Professional Responsibility and Discipline, looseleaf (Scarborough, Ont.: Carswell, 1993-). (KF 306 M32 1993)

Canadian. Looseleaf. Major chapter on confidentiality includes subsections on the corporate client, the future harm and innocence exemptions, and the lawyer self-interest exception.

Wolfram, Charles W., Modern Legal Ethics (St. Paul, Minn.: West, 1986). (KF 306 W64)

American. Textbook. Includes excellent chapter on "lawyers as client confidants," addressing both confidentiality and privilege. Dated, but a classic in the field.

Smith, Beverley G., Professional Conduct for Lawyers and Judges, 3rd ed. looseleaf (Fredericton, N.B.: Maritime Law Book, 2007-). (KF 306 S64 2007)

Canadian. Looseleaf. Concise discussion of C.B.A. Code and general theory of confidentiality.

Practice Essentials 2001 (Toronto: Dept. of Education, Law Society of Upper Canada, 2001). (KF 385 .ZB3 P73 2001)

Canadian. CLE. Practical tips on maintaining client confidentiality; how to deal with requests by third parties for disclosure of confidential information; the lawyer as witness; and search warrants and client files.

Legal Profession (Markham, Ont.: LexisNexis, 2007). (KF 297 A33 2007)

Canadian. Textbook. Part of Halsbury's Laws of Canada. A good starting point that includes references to other provinces' rules of professional conduct.

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Part B: Solicitor-Client and Litigation Privilege, Generally

Privilege is a major component of the duties of confidentiality that every lawyer owes his or her clients. According to Manes and Silver, "[s]olicitor-client privilege protects the integrity of the relationship most vital to the continuing operation of the legal system. In this sense, the law of solicitor-client privilege can be seen to have survival value for the legal system — for it is the law's method of safeguarding itself and its processes in an adversarial system" (Manes & Silver, Solicitor-Client Privilege in Canadian Law at 1). Therefore, it is not surprising that there is a wide range of materials dealing with privilege, both very generally, and specific to various situations.

Hubbard, Robert W., The Law of Privilege in Canada, looseleaf (Aurora, Ont.: Canada Law Book, 2006-). (KF 8959 H833 2006)

Canadian. Has chapters on different types of privilege including solicitor-client.

Recent Developments in the Law of Privilege (Toronto: Continuing Legal Education, Canadian Bar Association — Ontario, 2000). (KF 8959 .A7 R43 2000)

Canadian. Includes materials on "Mary Carter" agreements, overriding solicitor-client privilege, common interest privilege and waiver, and the future of common law privilege in Ontario.

Manes, Ronald D. & Michael P. Silver, Solicitor-Client Privilege in Canadian Law (Toronto: Butterworths, 1993). (KF 8959.A7 M36 1993)

Canadian. Extensive discussion of privilege, including chapters on communications made in contemplation of litigation, the extent of privilege, and how privilege is lost. Regulatory and statutory material found in this book will require updating.

Imwinkelried, Edward J., The New Wigmore: A Treatise on Evidence, Evidentiary Privileges, 2nd ed. (Austin: Wolters Kluwer Law & Business, 2010). (KF 8958 I49 2010)

American. Extensive theoretical and practical discussion of privilege. In-depth history of privilege in common law and the statutory era.

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Part C: Solicitor-Client Privilege in Civil Matters

Walkowiak, Vincent S., ed., Attorney-Client Privilege in Civil Litigation: Protecting and Defending Confidentiality, 4th ed. (Chicago: American Bar Association, 2008). (KF 8959 .A7 A88 2008)

American. Includes chapters on the corporate client, contacting witnesses, loss of privilege through inadvertent disclosure, bad faith cases and work-product issues.

Gover, Brian J. and Patricia Latimer, "Confidentiality and Communications with Your Expert Revisited" in Expert Evidence in Civil Litigation (Toronto: Continuing Legal Education, Ontario Bar Association, 2007). (KF 8961 .A75 O583 2007)

Privilege, Confidentiality and Conflicts of Interest: Traversing Tricky Terrain (Toronto: Continuing Legal Education, Ontario Bar Association, 2008). (KF 8958 .A75 O583 2008)

Bar Admission Course. 48th, Academic phase 2005. Civil Litigation: Reference Materials (Toronto: Law Society of Upper Canada, 2005). (KF 8840 .ZB3 C585 2005)

Brief materials on solicitor-client privilege, longer section within chapter on discovery dealing with privilege generally (including litigation privilege and negotiations for settlement).

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Part D: Solicitor-Client Privilege and Criminal Law

Due to the nature of the field, criminal law has special considerations in regards to confidentiality and privilege. While general ethics texts do contain materials on the issues of confidentiality and criminal law, solicitor-client privilege is often better addressed in works specifically geared to the criminal practitioner.

Fuerst, Michelle, "Solicitor-Client Privilege and Innocence at Stake: The New Battleground?" in The Charter, Criminal Procedure, Ethics and Advocacy (Montreal: Federation of Law Societies of Canada, 2002). (KF 9220 .ZA2 N38 2002)

Pringle, Leslie & Steven Skurka, "Innocence at Stake and Privilege in Peril" in Criminal Lawyer's Evidence Update (Toronto: Law Society of Upper Canada, Continuing Legal Education, 2002). (KF 8935 .ZA2 L393 2002)

Proulx, Michel & David Layton, Ethics and Canadian Criminal Law (Toronto: Irwin Law, 2001). (KF 306 P768 2001)

Chapter on confidentiality addresses rationale, applications of the ethical duty of confidentiality, and gives practical advice on how to safeguard confidentiality. Additional chapter on exceptions to confidentiality addresses authorized disclosure, lawyer self-defense, the "future harm" or "public safety" rule, unwitting involvement by lawyers in criminal acts and the duty not to mislead the court. An excellent handbook on the practical and theoretical issues of confidentiality for the criminal practitioner.

Smith, Ian R., "A Compelling Problem: Privilege and Production Orders" in Criminal Lawyer's Evidence Update 2005 (Toronto: Continuing Legal Education, Law Society of Upper Canada, 2005). (KF 8935 .ZA2 L393 2005)

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Part E: Topical Discussions

Each of these works focuses on a very limited area of law. While they might be less valuable in a general search, each resource may prove invaluable in certain circumstances.

Kahn, Jonathan W., "Solicitor/Client Privilege and Environmental Audits" in National Environmental Law Programme: "Planning for Compliance: Audits, Standards
and Sustainable Development" (Ottawa: Canadian Bar Association, 1998). (KF 3775 .ZA2 N369 1998)

Dodek, Adam M., "Constitutional Hierarchy: Solicitor-Client Privilege as Super-Constitutional Right" in Second Annual Charter Conference (Toronto: Continuing Legal Education, Ontario Bar Association, 2003). (KF 4483 .C519 O583 2003)

Gibney, Paul J. and Matthew G. Williams, "Privilege: Now You Have It Now You Don't" in Taxation: To Disclose or Not to Disclose: Dealing with the Canada Revenue Agency (Toronto: Continuing Legal Education, Ontario Bar Association, 2005). (KF 6499 .ZA2 I574 2005)

Hricik, David, "Ethics and Embedded Confidential Information" in 32nd National Conference on Professional Responsibility Coursebook (Chicago: Center for Professional Responsibility, 2006). (KF 306 .A5 N383 2006)

Stikuts, Andrew M., "Getting Instructions, Giving Advice and Recent Cases on Privilege in the Municipal Context" in Public Sector: Public Law Liabilities and Litigation: The Latest and Most Significant Issues (Toronto: Continuing Legal Education, Ontario Bar Association, 2005). (KF 1321 .A75 I57 2005)

Last reviewed: August 9, 2010