Disclosure and Contact Tracing

September 29, 2020

A legal professional or staff member who has tested positive for the COVID-19 virus, or who is being treated as presumptively positive, may be required to provide information to a provincial health officer or their designate, pursuant to the relevant provincial or territorial public health act and regulations. The information sought might include the names and contact information of individuals with whom the professional has had recent contact. This may include the names of and contact information for clients. Under some circumstances, health authorities may also seek more detailed information such as the nature of the lawyer’s recent encounters with individuals or their duration. Such information is confidential and, in some circumstances, may be privileged.

The Rules of Professional Conduct provide an exception to the duty of confidentiality in order to protect public safety or prevent future harm. Rule 3.3-3A states “A lawyer must disclose confidential information, but only to the extent necessary if the lawyer has reasonable grounds for believing that an identifiable person or group is in imminent danger of death or serious bodily harm and believes disclosure is necessary to prevent the death or harm.”

The Supreme Court of Canada has recognized an equivalent exception to privilege if a serious and imminent threat to public safety exists to an identifiable person or group of persons (Smith v. Jones, [1999] 1 SCR 455).

Extent of Information Communicated:

In providing recent contact information to health authorities, a legal professional or staff member who has tested positive for the virus, or who is being treated as presumptively positive, may disclose the names and contact information of clients with whom the professional has been in recent contact. However, the legal professional must not disclose more information about those individuals than is required. In particular, a legal professional or staff member should take care not to identify as clients any individuals included in the disclosure or make any unnecessary reference to the purpose or circumstances of the contact.

Where the health authority asks about additional circumstances, such as the recency, proximity, location and duration of the contact, the lawyer should provide information only to the extent necessary to answer the related inquiry.

Steps for Lawyers to Take:

A legal professional who believes that disclosure may be warranted should, if able, contact the law society for ethical advice or refer to existing guidance from their law society regarding disclosure in these circumstances.

Client consent in advance to the disclosure of information is not required; however, notice of the disclosure to any affected clients should be provided within a reasonable time.

Record-Keeping:

If confidential client information is disclosed, the legal professional should be mindful of the obligations under Rule 3.2-2 to be honest and candid with the client and to inform the client of the disclosure where appropriate in accordance with commentary [4] of rule 3.3-3B:

[4]          Once a decision to disclose is made, the lawyer will then need to consider how to disclose, to whom, and how to ensure that the disclosure is no more than is necessary to prevent the crime or dangerous situation at the court facility from occurring. Furthermore, the lawyer must also be mindful of the obligations under Rule 3.2-2 to be honest and candid with the client and to inform the client of the disclosure where appropriate.

If a decision to disclose is made, prepare and retain a written record of the circumstances and details of the disclosure.

Please contact [email protected] for support and guidance regarding your professional obligations.