PROFESSIONAL CONDUCT RULES AND CONFIDENTIAL INFORMATION VERSUS SOLICITOR-CLIENT PRIVILEGE LAWYERS’ DISPUTES AND THE USE OF CLIENT INFORMATION

Abstract

Solicitor-client privilege and law society codes of conduct do not perfectly overlap in terms of the scope of protected client information. In some contexts, codes of conduct permit lawyers to use protected information where solicitor-client privilege does not. The codes of conduct should be amended to clarify that they do not authorize use or disclosure of privileged information that is not permitted by law. In client/lawyer litigation, solicitor-client privileged information is sometimes admitted on the basis of waiver of privilege. This is inappropriate. Client/lawyer litigation should instead proceed on the basis that no issue of privilege arises as between client and lawyer in respect of information that is not confidential as between them. However, care should be taken in client/lawyer to protect privileged information from disclosure to third parties by sealing and other protective orders.