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1. Confidentiality in Arbitration: A VALID ASSUMPTION? A PROPOSED SOLUTION!.................................. 1

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Document 1 of 1

Confidentiality in Arbitration: A VALID ASSUMPTION? A PROPOSED SOLUTION!

Author: Thomson, Claude R; Finn, Annie M K

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Abstract:
Most parties to arbitration assume that the private nature of the process will ensure that the evidence, the
proceedings and the award will be kept private and confidential and that sensitive or embarrassing records and
activities will not be subjected to public view. Many parties select arbitration as a dispute resolution process
precisely to secure privacy and confidentiality. Over the past decade, authors have directed much attention to
the debate over the principle of confidentiality in both domestic and international arbitration. While courts in
some countries have recognized an implied duty of confidentiality, recent case law developments in other
countries have not and they protect confidential information only when the circumstances require. This article
examines the current state of the law relating to confidentiality and the steps that may be taken to secure as
much confidentiality as the law will permit.

Links: Linking Service

Subject: International; Arbitration; Confidentiality; Agreements; Guidelines;

Classification: 9180: International; 4330: Litigation; 9150: Guidelines

Publication title: Dispute Resolution Journal; New York

Volume: 62

Issue: 2

Pages: 75-81

Number of pages: 7

Publication year: 2007

Publication date: May-Jul 2007

Publisher: American Arbitration Association

Place of publication: New York

Country of publication: United States

Publication subject: Law, Political Science--International Relations, Business And Economics--Labor And
Industrial Relations

ISSN: 10748105

Source type: Scholarly Journals

Language of publication: English

Document type: Feature

Document feature: Illustrations References

ProQuest document ID: 198159454

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Copyright: Copyright American Arbitration Association May-Jul 2007

Last updated: 2014-05-03

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 Confidentiality
in Arbitration:
A VALID ASSUMPTION?
A PROPOSED SOLUTION!
BY CLAUDE R. THOMSON AND ANNIE M. K. FINN

Claude R. Thomson, Q.C., LL.D., is a Chartered Arbitrator, a mediator

and a litigation consultant in Toronto. He is a co-chair of ADR Chambers
International and may be reached at adr@adrchambers.com and at claude@claudethomson.com.

Annie Finn, a litigation lawyer and partner in the Toronto office of Fasken Martineau DuMoulin
LLP, assisted Mr. Thomson in the preparation of this article. The authors wish to acknowledge the
contributions of Berkley Sells of Fasken Martineau DuMoulin LLP. Initial research for the article
was conducted by Maria Sirivar, a student-at-law at Fasken Martineau, and by Andrew Newman
and David Contant, former students-at-law at the firm.

M
This article ost parties
examines the to arbitra-
current state tion assume
of the law that the private nature of the process will
relating to con-
ensure that the evidence, the proceedings
fidentiality and
the steps that
and the award will be kept private and
may be taken to confidential and that sensitive or embar-
secure as much rassing records and activities will not be
confidentiality subjected to public view. Many parties
as the law will select arbitration as a dispute resolution
permit. process precisely to secure privacy and
confidentiality.

DISPUTE RESOLUTION JOURNAL 75

INTERNATIONAL
Parties to a commercial arbitration would be
surprised to learn that the assumption of confi-
dentiality may not always be valid. Over the past
decade, authors have directed much attention to
the debate over the principle of confidentiality in
both domestic and international arbitration.
While courts in some countries have recognized
an implied duty of confidentiality, recent case law
developments in other countries have not and
they protect confidential information only when
the circumstances require.
This article examines the cur-
rent state of the law relating to While courts in
confidentiality and the steps that
may be taken to secure as much some countries
confidentiality as the law will
permit.
have recognized
The Current State of the Law
an implied duty
A number of national courts of confidentiality,
around the world have consid-
ered the issue of confidentiality recent case law
in arbitration. Unfortunately, the
jurisprudence is sporadic and in- developments in
consistent. A number of English
cases have recognized an implied other countries
obligation of confidentiality but
deal with particular claims of
have not and
confidentiality on a case-by-case
basis. For instance, in Dolling-
they protect
Baker v. Merrett, 1 the English confidential in-
Court of Appeal found that an
implied obligation of confiden- formation only
tiality existed in the arbitration
process. This obligation extend- when the circum-
ed to documents prepared in
contemplation of arbitration or stances require.
used in the process, transcripts,
notes of evidence, testimonial evidence, and the
award. However, the court stated that the obliga-
tion of confidentiality would not be allowed to
impinge on the fair disposition of the action.
Courts in France 2 have recognized a similar
implied duty.
But courts in Australia,3 the United States4 and
Sweden5 have rejected a general implied duty of
confidentiality.
In the controversial Australian case Esso
Australia Resources Ltd. et al. v. Plowman, which
concerned a dispute between Esso and the
Australian Minister for Energy and Minerals over
public utilities and information related to the
prices charged to the public, the High Court of
Australia held that confidentiality was not an
essential attribute of the arbitral process.
In the U.S. case United States v. Panhandle
Eastern Corp, et al., which involved a request by
76
the U.S. Government for the production of doc-
uments used in an International Chamber of
Commerce arbitration in Switzerland, a federal
district court said in dicta that, without an agree-
ment between the parties, or procedural rules
that explicitly guarantee confidentiality, arbitra-
tion proceedings will not necessarily be consid-
ered confidential.
In the Swedish case, A.I. Trade Finance Inc. v.
Bulgarian Foreign Trade Bank Ltd. (Bulbank), the
Swedish Court of Appeal held
that there is no implied in law
duty of confidentiality in arbitra-
tion. Rather, the court substitut-
ed a duty of loyalty and good
faith, which would restrict dis-
closure of certain information
pertaining to the arbitration,
depending on the circumstances
of the case.
The above-mentioned cases
essentially held that confidential
information in arbitration is only
protected when special circum-
stances warrant a finding that
the parties intended to keep spe-
cific information private. Most
of the decided cases are based on
unusual factual situations that
make general principles difficult
to discern.
The difficulty in discerning
general principles from the
decided cases is demonstrated in
the recent English Privy Council
case, Associated Electric & Gas In-
surance Services Ltd. (AEGIS) v.
European Reinsurance Company of
Zurich (Bermuda).6 This case involved two succes-
sive arbitrations between the same parties
(AEGIS and European Re), arising out of two
separate disputes under an automatic, facultative
reinsurance agreement. Both disputes involved
the obligation of European Re to indemnify
AEGIS. The reinsurance agreement required
arbitration of disputes before a three-member
arbitration panel. The arbitrations were held in
Bermuda before differently constituted panels of
arbitrators.
In the first arbitration, the parties had entered
into a confidentiality agreement, which was
included in agreed procedural directions issued
by the arbitral panel. The agreement set out a
general duty of confidentiality:
The parties, their lawyers, and the Court of
Arbitration agree as a general principle to
maintain the privacy and confidentiality of the
MAY/JULY 2007
 arbitration. In particular they agree that the
contents of the briefs or other documents pre-
pared and filed in the course of this proceeding,
as well as the contents of the underlying claim
documents, testimony, affidavits, any tran-
scripts, and the arbitration result will not be dis-
closed at any time to any individual or entity, in
whole or in part, which is not a party to the
arbitration between Aegis and European Re.7
In the second arbitration, European Re sought
to introduce the award from the first arbitration.
Its purpose was to establish an estoppel defense,
arguing that the findings in the earlier proceed-
ing were binding on the parties and the arbitra-
tors in the second proceeding. AEGIS obtained
an ex parte injunction from a trial court in Ber-
muda restraining European Re from introducing
the first award based on the confidentiality agree-
ment. The Bermuda Court of Appeal allowed
European Res appeal and then vacated the
injunction.
AEGIS appealed to the Privy Council, Ber-
mudas highest court of appeal, arguing in sup-
port of the injunction that to disclose the award
in the first arbitration to the panel in the second
arbitration would breach the principle of privacy
associated with arbitration and, more specifically,
the express confidentiality agreement reached in
the first arbitration. It also argued that European
Res estoppel defense in the second arbitration
was so lacking in merit that it was an abuse of
process to raise it.
The Privy Council said, These are powerful
arguments but they have to be evaluated having
regard to the surrounding circumstances in which
this confidentiality agreement was made and the
basic principles and purpose of arbitration.
The Privy Council recognized the need to pre-
serve confidentiality and the lawyer-client privi-
lege, but it said, [T]he otherwise legitimate use
of an earlier award in a later, also private, arbitra-
tion between the same two parties would not
raise the mischief against which the confidentiali-
ty agreement is directed.8
In its analysis, the Privy Council appeared to
place more importance on the essential purposes
of arbitration to determine disputes between the
parties, declare the rights and obligations of the
parties, and bind them to that declaration,9 rather
than on the principle of confidentiality.
The Privy Council reviewed the international
conventions and statutes10 that are used to en-
force arbitral declarations and concluded:
Taking these factors into account in constru-
ing this confidentiality agreement, that is to
say, the mischief at which the clause is directed
DISPUTE RESOLUTION JOURNAL
and the fundamental purpose of an arbitration
agreement, it becomes clear that it should not
be construed so as to prevent one party from
relying upon an award as having given him
rights against the other. But that is what the
application for an injunction sought to
achieve.11
The Privy Council accepted that the decision
in the first arbitration gave rise to the estoppel
defense on which European Re relied in the sec-
ond arbitration. For AEGIS to relitigate the same
issues in the second arbitration would be a failure
by it to recognize and perform the earlier award.
Following a review of two earlier leading En-
glish cases,12 the Privy Council expressed reserva-
tions about the desirability or merit of adopting a
duty of confidentiality as an implied term of arbi-
tration and then formulating exceptions to which
such a duty would be subject. This approach, the
court stated, runs the risk of failing to distin-
guish between different types of confidentiality
which attach to different types of document or to
documents which have been obtained in different
ways and elides privacy and confidentiality.
The Privy Council noted that commercial
arbitrations are essentially private proceedings
and, unlike litigation in the courts, do not place
anything in the public domain. This could mean
that implied restrictions on the use of material
obtained in arbitration have a greater impact than
those applying for material used in litigation. But
when it comes to the award, the same logic can-
not be applied since it might be necessary to refer
to an award for an accounting or enforcement.
Therefore, generalizations and the formulation
of detailed implied terms are not appropriate.13
The AEGIS case demonstrates that general
principles of confidentiality are difficult to dis-
cern and confidentiality agreements will be evalu-
ated having regard to the circumstances in which
they are made and the basic principles and pur-
poses of arbitration.14
Situation in Canada
Canadian courts have not yet decided the issue
and the law is therefore not settled. Like most
countries, Canada and its provinces do not have
legislation that defines and regulates the scope of
confidentiality in domestic or international arbi-
tration. Most arbitration institutions have provi-
sions dealing with the privacy of hearings but not
the confidentiality of awards, evidence and sub-
missions that are circulated between the parties.
In the absence of statutory direction, practition-
ers have struggled to determine whether the
applicable law imposes an implied duty of confi-
77
INTERNATIONAL
dentiality when parties agree to submit their dis-
pute to arbitration without mentioning confiden-
tiality and, if so, precisely what is confidential and
what exceptions to any rule must be recognized.
Competing Values
A number of competing values must be recon-
ciled if any general principles are to be estab-
lished. A fundamental basis for agreeing to arbi-
tration rather than to litigation in public courts is
to preserve privacy and confidentiality to the
greatest extent possible. Arbitration is a private
dispute resolution process in which the arbitra-
tors and rules are selected by the parties. In prin-
ciple, there is no reason why business people
should not be able to resolve their commercial
disputes in a private and confidential manner.
In principle, there is no reason why business
people should not be able to resolve their commercial
disputes in a private and confidential manner.
Public Interest in Disclosure
A concurrent and sometimes overriding public
interest sometimes has to be recognized. It is
appropriate to lift the cloak of confidentiality in a
number of circumstances including the following:
1. The subject matter or the existence of the
dispute and/or its outcome must be publicly
reported because it may be material to the
financial condition of a public company.
2. Disclosure of the dispute and the surrounding
circumstances or outcome may be required by
shareholders, partners, creditors or others
having a legitimate business interest in the
affairs of one of the parties to the dispute.
3. One of the parties may conclude that its
commercial interests and the interests of
shareholders and potential shareholders
would be enhanced by publicly disclosing
information about the dispute and any
resulting award and that, accordingly, it has
a duty to make such disclosure.
4. One or both of the parties may be subject to
obligations (e.g., as a fiduciary) to disclose
information in spite of any express or im-
plied term to the contrary in the arbitration
agreement.
5. It may not be possible or proper to shield
the companys auditors and outside advisors
from the fact and nature of the dispute and
78
the surrounding circumstances and the ulti-
mate award, whether confidential or not.
6. The parties may have duties of disclosure to
insurers.
7. The parties must be free to present the
award and relevant surrounding circum-
stances in a public court to either enforce or
appeal the award or use it as evidence in
another related proceeding.
8. The parties may be obliged to disclose evi-
dence from the arbitration in another pro-
ceeding.
9. Evidence of illegal or criminal conduct that
should be reported to public authorities may
be uncovered during the course of the pro-
ceedings.
The Confidentiality Clause
Given the competing values discussed above, it
is doubtful that any legislated solution would be
effective to resolve the issue of confidentiality in
all circumstances.
A number of arbitral institutions have enacted
rules dealing with confidentiality.15 In general,
the rules are intended to ensure the privacy and
confidentiality of the proceedings, subject to the
consent of the parties and the application of any
overriding legal duty of disclosure. However, not
all arbitration rules refer to confidentiality.16
The question of confidentiality is best left to
the parties in their commercial agreement or
arbitration agreement. It is always preferable to
negotiate a written arbitration agreement before
a dispute arises because it is often difficult to
reach a consensual agreement once a dispute
occurs. The appropriate terms of a confidentiali-
ty agreement will be different depending on the
circumstances of each transaction or dispute.
If the arbitration agreement does not address
the issue of confidentiality, the parties may
address that issue during an administrative con-
ference with the tribunal at a preliminary stage of
the proceeding.
What follows is a form of confidentiality clause
that can serve as a basis for discussion and negoti-
ation when confidentiality is important to the
parties. Bear in mind that any confidentiality
clause must comply with the applicable law in the
relevant jurisdiction.
MAY/JULY 2007
 DRAFT CONFIDENTIALITY AGREEMENT
Subject to any applicable and overriding law
and duty, the parties agree for themselves and
any persons or companies under their control
and direction that any arbitration conducted
under the authority of this agreement will be
private and confidential, and all documents,
evidence, orders and awards, whether electron-
ic or otherwise, will be kept private and secret
and will not be disclosed to persons who are
not participating in the arbitration proceeding.
This obligation continues during the course of
the proceeding and thereafter unless all parties
otherwise agree.
If a party concludes that its legal duty requires
disclosure of such material, it will give the
opposing party notice of its intention to dis-
close before making any such disclosure.
If the opposing party will not consent to the
disclosure, the parties agree that the question
of whether there is any applicable and overrid-
ing law and duty in relation to the material
under consideration will be presented for deci-
sion to the arbitrator who is appointed under
this agreement. The parties agree to be bound
by the ruling of the arbitrator whose decision
will be final and binding.
The arbitrator may determine the timing,
nature and extent of disclosure. The parties
agree that any failure to abide by the decision
of the arbitrator may give rise to a claim for an
injunction.
The Arbitrator
The parties agree that they will expect and
require a person who is appointed as an arbi-
trator under this agreement to agree with, and
for the benefit of, all parties that all docu-
ments, evidence, orders and awards, whether
electronic or otherwise, in relation to this arbi-
tration will be kept secret, private and confi-
dential by the arbitrator; will be not be dis-
closed by the arbitrator to anyone who is not a
participant in the proceeding; and will be
destroyed by the arbitrator at the conclusion of
the proceeding.
Court Reporter and Clerks
The parties agree that they will expect and
Comments on the Draft Agreement
If confidentiality is extremely important to the
parties, a stricter confidentiality regime could be
imposed on expert witnesses, for example, it
might say:
DISPUTE RESOLUTION JOURNAL
require the person who is appointed as a court
reporter or clerk under this agreement to agree
with and for the benefit of all parties that all
documents, evidence, orders and awards, elec-
tronic or otherwise, in relation to the arbitra-
tion will be kept secret, private and confidential
by him or her and will not be disclosed to any-
one who is not a participant in the proceeding.
Counsel
The parties agree that they will expect and
require all counsel and their staff who are
retained or appointed to act for a party in an
arbitration under this agreement will be expect-
ed and required to agree with, and for the ben-
efit of, all parties that all documents, evidence,
orders and awards, whether electronic or other-
wise, in relation to the arbitration will be kept
secret, private and confidential by them and will
not be disclosed by them to anyone who is not a
participant in the proceeding unless the counsel
is bound by an overriding law or duty.17
Consultants/Expert Witnesses
The parties agree that they will expect and
require a person who is retained as a consul-
tant/expert witness by a party to this arbitration
to agree with, and for the benefit of, all parties
that all documents, evidence, orders and awards,
electronic or otherwise in relation to the arbi-
tration will be kept secret, private, and confi-
dential by the consultant/expert witness and will
not be disclosed by the consultant/expert wit-
ness to anyone who is not a participant in the
proceeding unless the consultant/expert witness
is bound by an overriding law or duty.
Non-Expert Witnesses
The parties agree that they will expect and
require a person whom they present as a wit-
ness at any hearing held pursuant to this arbi-
tration to agree with, and for the benefit of, all
parties that all documents, evidence, orders
and awards, electronic or otherwise, in relation
to the arbitration will be kept secret, private
and confidential by the witness and will not be
disclosed by the witness to anyone who is not a
participant in the proceeding.
If a consultant/expert witness concludes that
its legal duty requires disclosure of such mate-
rial, before making any such disclosure, it will
give the parties to the arbitration notice of its
intention to disclose material covered by this
79
INTERNATIONAL

agreement. If the parties However, where the tribu-

will not consent to the dis- The challenge is to nals jurisdiction is unclear, the
closure, the consultant/
expert witness and the par-
draft a clause that courts would have to adjudicate
the issue of jurisdiction. It is
ties will agree that the ques-
tion of whether there is any
will discourage a not clear that a court would feel
bound by the decision of a tri-
applicable and overriding party who is subject bunal on the issue.
law and duty in relation to Moreover, since the tribunal
the material under consider- to a confidentiality does not have the power to
ation will be presented for excuse non-compliance with a
decision to the arbitrator agreement from legal duty, there is a risk that the
appointed under this agree-
ment. The parties and the unilaterally and arbitrators decision could be
determined to be wrong by
consultant/ expert witness
agree to be bound by the
arbitrarily deter- another tribunal at another time.
Nevertheless we believe that the
ruling of the arbitrator
whose decision will be final
mining that its proposed clause has some practi-
cal value and if implemented
and binding. understanding of would discourage, if not prevent,
However, many consultants
and expert witnesses will refuse
its legal duty of arbitrary and unjustified publica-
tion of confidential material.
to enter into this kind of con-
tractual commitment.
disclosure justifies
Conclusion
An appropriate confidential- the publication Confidentiality is often
ity agreement must address the believed to be an important
legal duty of disclosure. The of confidential advantage of arbitration. How-
challenge is to draft a clause
that will discourage a party information. ever, because of the legal in-
consistencies across jurisdic-
who is subject to a confiden-
tions and different treatment by
tiality agreement from unilaterally and arbitrarily
determining that its understanding of its legal institutional arbitration rules, parties to arbitra-
duty of disclosure justifies the publication of con- tion should not assume that the existence of an
fidential information. Thus, the existence and arbitration, the evidence and the award would be
timing of the alleged duty to disclose may be kept confidential. At most, to attempt to preserve
controversial and may require urgent action. confidentiality, parties should incorporate express
A broadly drafted arbitration agreement can confidentiality provisions in their arbitration
purport to give a tribunal jurisdiction over confi- agreement and address the issue by stipulating to
dentiality issues. The clause suggested here confidentiality terms in an arbitrators procedural
empowers the arbitrator to resolve any dispute directions or in an order from the arbitral tri-
over this matter. bunal. n

1 exceptions to the confidentiality prin-
Dolling-Baker v. Merrett, 2 All E.R.
890 (Eng. C.A. 1991). See Hassneh
Insurance Co. of Israel v. Mew, 2 Lloyds
Rep. 243 (Q.B. 1993) (following the
rationale of Dolling-Baker, the Court
affirmed that confidentiality was an
essential characteristic of arbitration;
however, it recognized a further excep-
tion where disclosure is required to
establish a cause of action in another
dispute); Ali Shipping Corp. v. Shipyard
Trogir, 1 Lloyds Rep. 643, 2 All E.R.
136 (Eng. C.A. 1998) (re-asserting the
Dolling-Baker principle that confiden-
tiality was necessarily incidental to the
privacy inherent in arbitration pro-
ceedings; recognizing the following
ENDNOTES
ciple: the consent of the parties, the
presence of a court order requiring dis-
closure, the reasonable necessity of
disclosure to the protection or the
enforcement of a parties legal rights,
and finally, where disclosure is neces-
sary in the interests of justice).
2 For instance, Bleustein et autres v.
Socit True North & Socit FCB Inter-
national, Rev. Arb. no. 1, 189 (2003)
Paris Commercial Court; as discussed in
Handbook of ICC Arbitration,
Commentary, Precedents, Materials
(first ed., Michael Buhler & Thomas
Webster eds., 2005).
3
Esso Australia Resources Ltd. &
Others v. Plowman, 183 C.L.R. 10, 128
A.L.R. 391 (1995).
4 United States v. Panhandle Eastern
Corp., 118 F.R.D. 346 (D. Del. 1988).
5 A.I. Trade Fin. Inc. v. Bulgarian
Foreign Trade Bank Ltd. (Bulbank), 14
Mealeys Intl Arbitration Rep. 4. A1
(1999).
6 Associated Electric & Gas Ins. Serv.
Ltd. v. European Reinsurance Co. of
Zurich (Bermuda) [2003] UK PC 11
(Jan. 29, 2003) (AEGIS); see also case
commentary by John P. Gaffney,
Confidentiality in International Arbi-
tration: A Recent Decision of the Privy
Council 18 Mealeys Intl Arbitration
Rep. 5 (2003).

80 MAY/JULY 2007

rules that do not refer to confidentiali-
ty. For instance:
7
The confidentiality obligation was
subject to a number of exceptions.
AEGIS, supra n. 6, at 6.
8 the Arbitration Rules of the Inter-
AEGIS, supra n. 6, at 8.
9 See also discussion by Gaffney,
supra, at 2-3.
10 Which governed both arbitra-
tions under the law of Bermuda, which
incorporated relevant provisions from
the UNCITRAL Model Law on
International Commercial Arbitrations
of 1985, and the New York Conven-
tion on the Recognition and Enforce-
ment of Foreign Arbitral Awards,
1958.
11 AEGIS, supra, 11.
12 Dolling-Baker and Ali Shipping,
see supra n. 1.
13
AEGIS, supra n. 6, at 20.
14
Id. at 7; and see also discussion
by Gaffney, supra n. 6.
15 For instance:
Rules of Arbitration of the Inter-
national Chamber of Commerce,
adas Rules of Professional Conduct
Appendix I, Article 6 and Appendix
(Rule 2) provides, in relevant part:
II, Article 1;
Rules of the London Court of In-
ternational Arbitration, Article 30;
International Centre for Dispute
Resolution (American Arbitration
Association) International Arbitra-
tion Rules, Article 34;
World International Property
Organization Arbitration Rules,
Articles 73-76;
Swiss Rules of International Arbi-
tration, adopted by the Chamber of
Commerce and Industry of Zurich
in 2004, Article 43;
Swiss Rules of International Arbi-
tration, adopted by the Chamber of
Commerce and Industry of Geneva
in 2004, Article 43;
Arbitration Rules of the German
Institution of Arbitration (DIS),
Section 43;
Arbitration Rules of the Singapore
International Arbitration Centre,
Rule 34.6;
DISPUTE RESOLUTION JOURNAL
Hong Kong International Arbitra-
tion Centre Domestic Arbitration
Rules, Article 26;
Rules of the International Com-
mercial Arbitration Court that the
Chamber of Commerce and In-
dustry of the Russian Federation,
Article 11; and
ACICA Arbitration Rules, Article
18.
16
A number of institutions have
the United Nations Commission on
International Trade Law Interna-
tional Arbitration Rules;
national Centre for Settlement
Investment Disputes (ICSID);
the ICSID Rules of Procedure for
the Institution of Conciliation and
Arbitration Proceedings (Institution
Rules);
the Rules of the Arbitration In-
stitute of the Stockholm Chamber
of Commerce;
the International Arbitral Centre of
the Austrian Federal Economic
Chambers Rules of Arbitration
(Vienna Rules); and
the China International Economic
and Trade Arbitration Commission
(CIETAC) Arbitration Rules.
17
For instance:
The Law Society of Upper Can-
2.03 Confidentiality
Code of Professional Conduct, Chap-
ter IV, contains similar provisions as
above.
Confidential Information
2.03 (1) A lawyer at all times shall
hold in strict confidence all infor-
mation concerning the business and
affairs of the client acquired in the
course of the professional relation-
ship and shall not divulge any such
information unless expressly or
impliedly authorized by the client
or required by law to do so.
Justified or Permitted Disclosure
2.03 (2) When required by law or
by order of a tribunal of competent
jurisdiction, a lawyer shall disclose
confidential information, but the
lawyer shall not disclose more
information than is required.
2.03 (3) Where a lawyer believes up-
on reasonable grounds that there is
an imminent risk to an identifiable
person or group of death or serious
bodily harm, including serious psy-
chological harm that substantially
interferes with health or well-being,
the lawyer may disclose, pursuant to
judicial order where practicable,
confidential information where it is
necessary to do so in order to pre-
vent the death or harm, but shall not
disclose more information than is
required.
2.03 (4) Where it is alleged that a
lawyer or the lawyers associates or
employees are:
(a) guilty of a criminal offence
involving a clients affairs; (b)
civilly liable with respect to a
matter involving a clients affairs;
or (c) guilty of malpractice or
misconduct, a lawyer may dis-
close confidential information in
order to defend against the alle-
gations, but the lawyer shall not
disclose more information than
is required.
The Canadian Bar Associations
81
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.