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POA Weekly – Week 15: What are the Rules Respecting Privilege and Confidentiality that a Solicitor Must be Aware of?

It is important for grantors to understand that a CPOAP becomes operative upon signing, not upon future incapacity. Clients sometimes keep their POA documents with their lawyers.  The practice among practitioners in this regard varies, and, it is not clear what the best practice in fact is.  The circumstances under which a solicitor can release a POA are often difficult to determine in light of rules respecting privilege and confidentiality.  Arthur Fish, in his article, “The Use and Abuse of Powers of Attorney for Personal Care,”[1] although dealing specifically with POA for Personal Care, gives practitioners food for thought in terms of drafting techniques for contingent effectiveness, in other words, where the POA is contingent upon a finding of incapacity (contingencies and triggering events addressed within). Arthur Fish also helpfully addresses written instructions on the release of powers of attorney for personal care and sets out precedent clauses and letters of instruction on release.[2]

Where the attorney is retained by the lawyer, perhaps a letter could be provided by the client with release instructions to be followed by the lawyer upon the client becoming incapable.  The lawyer in that way would be indemnified of any claims or losses resulting from reliance on the instructions.  The instructions would refer to release conditions that may include a doctor’s certificate, a capacity assessment, or any number of conditions for release.  Notably, there still may be a question as to whether or not the instructions are still valid upon the client becoming incapable.  In other words, do the instructions survive incapacity?  In many respects, it may be advisable for lawyers to avoid holding POA documents for safekeeping at all.  The difficulty is the question – on what basis does the solicitor have the authority to release the POA if the client is unable to give instructions and\or the client is deemed to be incapable and not able to give instructions.

Issues of solicitor and client privilege, evidentiary rules, ethical rules and client rights to confidentiality, are all difficult issues that the lawyer must consider in determining what is to happen with POA documents and\or what to do when the solicitor gets the call from anyone but the client with respect to inquiries about the POA.  Similarly, to what extent is the lawyer permitted to communicate with the attorney when it was the grantor of the POA that was the client?

Sometimes in power of attorney disputes, the drafting lawyer will be contacted by a friend, or family member of someone who is likely to be a prospective client (i.e. grantor of the POA).  In such cases, it is essential to determine whether it is appropriate for the lawyer to meet with the person calling, or rather, with the prospective client.  Awareness concerning potential conflict situations is critical.

It is not always proper to refuse to meet with a client simply because the client has not personally contacted lawyer since situations concerning POA disputes are unique.  Often, an elderly or even incapable person who requires assistance may be personally unable to make appointments.  In situations such as this, though one may agree to meet with the friend or relative who made the initial contact, either alone or together with the prospective client initially, it is prudent thereafter to consider meeting with the prospective client alone and to ascertain instructions.  Quite often, it is discovered that what the friend or relative has expressed as the “wants or needs” of the prospective client are not exactly what the “wants and needs” of the prospective client in fact are.

Confidentiality provisions under Rule 3.3 of the Rules of Professional Conduct,[3]  particularly, Rule 3.3-1, provides:

A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless:

  1. expressly or impliedly authorized by the client;
  2. required by law or by order of a tribunal of competent jurisdiction to do so;
  3. required to provide the information to the Law Society; or
  4. otherwise permitted by rules 3.3-2-3.3-6.

This Rule is an ethical Rule and applies without regard to the nature or source of information or the facts that others may share as knowledge.

The commentary to Rule 3.3-1 provides:

A lawyer cannot render effective professional service to the client unless there is full and unreserved communication between them.  At the same time, the client must feel completely secure and entitled to proceed on the basis that, without any express request or stipulation on the client’s part, matters disclosed to or discussed with the lawyer will be held in strict confidence.

This rule must be distinguished from the evidentiary rule of solicitor and client privilege concerning oral, or documentary communications passing between the client and the solicitor.  The ethical rule is wider and applies without regard to the nature or source of the information or the fact that others may share the knowledge.

A lawyer owes the duty of confidentiality to every client without exception, and, whether or not the client is a continuing or casual client.  The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether, or not, differences have arisen between them.

Generally, a solicitor should not disclose having been consulted, or retained by a person about a matter unless the nature of the matter requires such disclosure.

A lawyer should take care to avoid disclosure of confidential information concerning or received from one client, to another client and should decline retainers that might require such disclosure.

A lawyer should avoid indiscreet conversations, even with a lawyer’s spouse or family, about a client’s affairs and should shun any gossip about such things even though the client is not named or otherwise identified.  Similarly, a lawyer should not repeat any gossip or information about the client’s business or affairs that is overheard or recounted to the lawyer.  Apart altogether from ethical considerations or questions of good taste, indiscreet talk between lawyers, if overheard by third parties able to identify the matter being discussed, could result in prejudice to the client.  Moreover, the respect of the listener for lawyers and the legal profession will likely be lessened by such conduct.

Although this rule may not apply to facts that are within public knowledge, nevertheless, a lawyer should guard against participating in speculation concerning a client’s affairs or business.

In some situations, the authority of the client to disclose may be implied.  For example, some disclosure may be necessary in court proceedings, in a pleading or other court document.  It is implied that a lawyer may, unless the client directs otherwise, disclose the client’s affairs to partners and associates in the law firm and, as necessary, to non-legal staff, such as assistants and clerks.  Implied authority to disclose, also places a lawyer under a duty to impress upon employees, the importance of non-disclosure (both during their employment and afterwards) and requires the lawyer to take reasonable care to prevent disclosing any information that the lawyer is bound to keep in confidence.

A lawyer may have an obligation to disclose information under Rules 5.5-2, 5.5-3 and 5.6-3 (Security of Court Facilities).  If client information is involved in such situations, a lawyer should be guided by the provisions of Rule 3.3-1.

The Rule prohibits disclosure of confidential information because confidentiality and loyalty are fundamental to the relationship between a lawyer and client, and legal advice cannot be given, and, justice cannot be done unless clients have a large measure of freedom to discuss their affairs with their lawyers. There are some exceptional situations identified in the following sub-rules where disclosure without the client’s permission might be warranted because the lawyer is satisfied that truly serious harm of the types identified, is imminent and cannot otherwise be prevented.  These situations will be extremely rare, and, even in these situations, the lawyer should not disclose more information than is required.

Rule 3.3-3 provides:

A lawyer may disclose confidential information, but must not disclose more information than is required, when the lawyer believes on reasonable grounds that there is an imminent risk of death or serious bodily harm, and disclosure is necessary to prevent the death or harm.

A lawyer must hold in confidence all information that is expressed during the course of the relationship.  There are, however, several exceptions to this rule, including express or implied release by the client, court order, the prevention of a crime and the rebuttal of allegations of fraud or malpractice.  The law of privilege is much narrower than the ethical rules to consider.

By its very nature the POA is not privileged since it is intended for a third party.  That said, however, communications surrounding the drafting of the POA are privileged unless waived by court order.

In Will drafting situations, privilege survives the death of the client, and ensures to the benefit of the estate trustee of the estate.  The POA ceases to have effect on the death of the grantor.

[1]Arthur Fish, “The Use and Abuse of Powers of Attorney for Personal Care”, (1997), 17 ETPJ 67.

[2] This can be found at pages 80 through 84 of Arthur Fish’s article, and is well worth referring to for the purposes of addressing concerns of confidentiality and drafting issues.

[3] The Law Society of Ontario, Rules of Professional Conduct, effective October 1, 2014, amendments current to April 2018, online: https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct/complete-rules-of-professional-conduct

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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