As a general rule, a lawyer must keep all information obtained from a client during the course of a retainer confidential. But is this always the case? Are there circumstances where the nature of the retainer is such that it appears self-evident that certain disclosure was intended on the part of the client? Are there circumstances under which, even absent the direct authorization of the client, a lawyer may release certain information obtained during the course of the retainer to third parties?

The Rules of Professional Conduct are clear as it regards the duty of confidentiality that is owed from a lawyer to their client. Rule 2.03(1) of the Rules of Professional Conduct 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 expressly or impliedly authorized by the client or required by law to do so.

Under most circumstances this rule seems fairly straightforward. In the context of a lawyer retained to draft a will however, things can become a little more complicated. A will, by its design, does not take effect until after the client has died. As the client will no longer be around to consent to the release of confidential information, who may the drafting lawyer release this information to following the client’s death?

Strictly speaking, if one was to follow the rules regarding confidentiality to the letter of the law, a drafting lawyer would be unable to release the testator’s will following their death. The will, being a document drawn by the solicitor on the client’s instruction, could easily be classified as a document that was “acquired in the course of the professional relationship”. As a result, the drafting lawyer, if adhering to the rules regarding confidentiality, would be unable to divulge the contents of the will to a third party.

To follow the rules regarding confidentiality in such a way seems of little sense. If the drafting lawyer is not even allowed to divulge the very existence of the will to third parties, how will the testator’s intentions be carried out?

In order to overcome this potential problem, the common-law has developed what is known as the “wills exception”. Generally speaking, the “wills exception” enables the drafting solicitor to divulge the existence of a will, and the contents thereof, to those individuals with an interest in the estate. The “wills exception” has been codified by cases such as Re: Ott, [1972] 2 O.R. 5 and Hope v. Martin, in which the court sanctioned the drafting lawyer to release otherwise confidential information to certain interested parties of the estate.

Thank you for reading.

Stuart Clark