What should be exempt from lawyers’ duties of confidentiality and solicitor-client privilege?

If a lawyer learns of immediate plans to inflict coercive control, what, if anything, can they say to stop it? Deanne Sowter will study that issue over the next year at the University of Toronto and Osgoode Hall Law School’s Winkler Institute for Dispute Resolution.

In particular, Sowter says, she plans to look at one of the limited exceptions for lawyers’ duties of confidentiality and solicitor-client privilege. Although the two concepts are distinct, both duties of confidentiality and solicitor-client privilege allow for a lawyer to speak out under strict circumstances involving future harm, she says. 

“It’s a really, really high test,” she says, emphasizing the specificity and sense of urgency a client’s threat must have to meet the exception. “They can’t disclose everything, just enough to try and prevent the harm.” 

Lawyers are limited in making exceptions — and solicitor-client privilege is held in such high regard to allow the client to speak freely and openly —  so, Sowter says, there has been little to no jurisprudence in Canada on the test in cases of privilege and psychological harm that focus specifically on coercive control. 

But her background in family law has shown that these issues do arise, so she says she will look at the broader literature around coercive control and talk to family violence researchers. She says she is interested in hearing from lawyers on how they would approach these issues.

“Coercive control is between intimate partners,” she says. “What they do is maintain a pattern of controlling behaviour throughout the relationship — a pattern discrete things and behaviours.” 

Sowter says there is some evidence that coercive control behaviours — such as controlling bank accounts and phone access, threatening animals and stalking — can be more harmful, psychologically, than physical abuse in the long-term. Another complication is that some of the behaviour may be criminal in nature while other coercive control behaviour isn’t.

“What I want to look at is whether or not that could meet the test under the future harm exception to allow a lawyer to disclose that when they see that to prevent that future harm,” she says.

Her research over the next year will be aided by the OBA Foundation Chief Justice of Ontario Fellowships in Legal Ethics and Professionalism. By this time next year, Sowter says she hopes to present the research. 

“I’m hoping what I can come up with in the end is recommendations for ways to inform perhaps, change to the model code. Part of the problem is that I can only really recommend changes to the code, because solicitor-client privilege comes from jurisprudence, case law — the common law,” she says. “To me this is a small piece of a much broader national conversation we should be having about family violence. Part of what I’m hoping to illuminate are some of the problems — and why we need something like family violence legislation, federally, that could help fill in these pieces where the law isn’t functioning.”