What about Confidentiality, Paralegals, and Client Privilege?

Paralegals licensed by the Law Society of Ontario are bound by a code of professional ethics. Rule 3 of the Paralegal Rules of Conduct requires that a paralegal holds all information concerning the business and affairs of a client in strict confidence. Although some exceptions to this rule allow for limited disclosure in certain circumstances, the emphasis is on maintaining confidentiality and trust. Rule 3.03(9) maintains that even when disclosure of client information is permitted or justified, the paralegal shall not disclose more information than is necessary. This duty of confidentiality continues even after the paralegal has ceased to act for the client.

A paralegal’s duty of confidentiality is further addressed in the Paralegal Professional Conduct Guidelines. Guideline 8 comments that: “A paralegal cannot render effective professional service to a client, unless there is full and unreserved communication between them. The client must feel completely secure that all matters discussed with the paralegal will be held in strict confidence. The client is entitled to proceed on this basis, without any express request or stipulation.” This commentary emphasizes the importance of trust in these relationships. 

Rule 3 of the Paralegal Rules of Conduct and Guideline 8 noted above are virtually identical to what is in the lawyer rules of professional conduct. The commentary in the lawyer rules also addresses the issue of privilege. “This rule [of confidentiality],” according to the lawyer rules, “must be distinguished from the evidentiary rule of lawyer and client privilege, which is also a constitutionally protected right, concerning oral and documentary communications passing between the client and the lawyer. 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.” In other words, the ethical rule of confidentiality is broader than the evidentiary rule of privilege. Privilege with respect to confidential information belongs to neither the lawyer nor the paralegal. The privilege is that of the client.

Chancey v Dharmadi (2007) is a case where a plaintiff in a motor vehicle injury claim brought a motion in the Ontario Superior Court of Justice to have a paralegal who defended the Highway Traffic Act charge produce their file. During discovery, the plaintiff insisted the paralegal hand over the HTA file. The paralegal refused. 

The court dismissed the plaintiff’s motion. As described by Master Dash, who was presiding over the matter: “The communications between the client and paralegal, in the circumstances of this case, have satisfied all of the elements of the Wigmore test and in my view those communications are privileged and should be protected from disclosure.” The plaintiff was ordered to pay the defendant costs of the motion fixed in the sum of $2,100.

There are times to speak out, and times to act, but there are also times to refuse.


References:

Paralegal Rules of Conduct. Retrieved March 8, 2019 from https://lso.ca/about-lso/legislation-rules/paralegal-rules-of-conduct/complete-paralegal-rules-of-conduct

Paralegal Professional Conduct Guidelines. Retrieved March 8, 2019 from https://lso.ca/about-lso/legislation-rules/paralegal-professional-conduct-guidelines

Rules of Professional Conduct. Retrieved March 8, 2019 from https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct/complete-rules-of-professional-conduct

Chancey v Dharmadi, 2007 CanLII 28332. Retrieved March 8, 2019 from http://canlii.ca/t/1s60z