Ethical obligations for lawyers with COVID-19

As a lawyer who is currently a presumptive positive for COVID-19, I have had to think about my ethical obligations to my clients. This includes planning in the event my condition worsens, ensuring my files are orderly and managed and maintaining adherence to quarantine obligations to protect my clients and staff from catching the virus.

Thankfully, I caught the virus while at a conference in the United States and have been self-isolating since my return. But had I caught it in the community while going about my daily lawyer activities, I would have had to face another ethical obligation.

That obligation is triggered based on the duty to assist health professionals with contact tracing.

For many who are community cases of COVID-19, health officials are required to identify any people the individual has been in contact with prior to being diagnosed and notifying those individuals that they have had contact with a positive case.

But this raises ethical considerations for lawyers who have to advise health officials of contact with clients. Because not only are our conversations with clients privileged, the fact that a person is our client or has contacted us to seek legal advice is also subject to privilege. These considerations are heightened in cases of criminal lawyers, who are dealing with clients who may not, for very valid reasons, want to have contact with state officials.

And so what are the obligations that lawyers face when it comes to working with health officials in the event of a COVID-19 diagnosis?

First of all, consult your Legal Profession Act and code of professional conduct in the province or territory where you practise. There are often provisions that relate to exceptions to the duty of confidentiality, which apply in circumstances where the breach of confidentiality is for the purpose of protecting the public safety or preventing future harm.

Additionally, there is case law that supports that solicitor-client privilege can be breached to protect public safety. The case of Smith v. Jones [1999] 1 S.C.R. 455 involved the release of confidential information possessed by a lawyer and a psychiatrist, for the purposes of protecting harm to the public. The rule applies where the threat is serious, imminent and the people who are subject to the threat are identifiable.

In the context of a global pandemic, and close contact with a client, this exception is arguably made out.

However, despite the fact that these exceptions to privilege and confidentiality exist, that does not mean that a lawyer has carte blanche to start disclosing information. Rather, only that information which is necessary to address the threat can be disclosed. Nothing beyond this should be provided, under any circumstances.

Practically speaking, this means simply providing a name and contact information without identifying the person as a client as opposed to a personal friend or relative of the lawyer. This way, the fact that a person is a client and not an acquaintance or other contact of the lawyer could not be known by the health professionals, and the least damage to the privileged relationship can be done.

Before a lawyer does anything, however, the lawyer should contact the law society for assistance in how to provide this information and the extent of information to be provided. Remember that many law societies also require you to keep extensive records of any breach of privilege, so be sure to take detailed notes about each step you took in the even there is a complaint you may have to address.

Lawyers finding themselves in this circumstance would also be advised to alert their clients to the potential for health authority contact before the health authority has the opportunity to contact the client.

This serves two purposes.

First, it allows the lawyer to prepare the client for the potential that they are to be contacted by a state authority and advise them on the privileged nature of the communications with counsel, such that the client does not feel compelled to disclose any information about the relationship to the lawyer.

Second, it allows the lawyer to alert the client to the circumstances in which privilege was breached and explain the lawyer’s ethical obligation and steps they took to protect the privilege. From a client-lawyer relationship perspective, this will help to maintain confidence in the strength of the privileged relationship and not let it be damaged by the necessity of disclosure.

It may be prudent for the lawyer to attempt to work with health officials to determine whether the disclosure about contact with a COVID-19 patient, and necessary precautions the client must now take, can be done by the lawyer. If possible, a lawyer diagnosed with COVID-19 could offer to reach out to their clients directly, rather than through the health authority, to notify them and could offer to give an undertaking to provide necessary information about self-isolation protocols and symptoms to watch for.

While it is questionable as to whether health authorities would allow this, it is an important step for a lawyer to take to try first to protect privilege with the clients.

At the end of the day, however, contact tracing obligations will likely pose ethical conundrums for lawyers as this virus spreads. And so it is best to be prepared with knowledge of what to do before exposure to the virus happens, rather than to be scrambling once you have been exposed.

Kyla Lee is a criminal lawyer and partner at Acumen Law Corporation in Vancouver. Her practice focuses on impaired driving. She is the host of a podcast, Driving Law, and a weekly video series Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! She is called to the bar in Yukon and British Columbia. Follow her at @IRPLawyer.

Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.

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