Guidance for legal professionals testing or presumptively positive for COVID-19 virus

March 26, 2020

A legal professional who has tested positive for the COVID-19 virus,  who is being treated as presumptively positive, or who becomes aware that someone with whom they have had close contact has tested 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.

We have received questions about whether a lawyer is permitted to provide information about a client to health authorities without obtaining client consent.  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 of the Code of Conduct states:

Future Harm / Public Safety Exception

3.3-3 A lawyer may disclose confidential information, but must not disclose more information than is required, when the lawyer believes on reasonable grounds that an identifiable person or group is in imminent danger of death or serious bodily harm, and disclosure is necessary to prevent the death or harm.

The Commentary contemplates that, in exceptional situations, disclosure without the client’s permission might be permitted when the lawyer is satisfied that truly serious harm is imminent and cannot otherwise be prevented.

In assessing whether disclosure of confidential information is justified to prevent substantial harm, a lawyer should consider a number of factors, including:

  1. the seriousness of the potential injury to others if the prospective harm occurs;
  2. the likelihood that it will occur and its imminence;
  3. the apparent absence of any other feasible way to prevent the potential injury; and
  4. the circumstances under which the lawyer acquired the information of the client’s intent or prospective course of action.

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 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 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.

While not required to seek consent to make the disclosure, a lawyer should notify an affected client that the lawyer intends to provide, or has provided, the information requested within a reasonable time. It is preferable to advise the client in advance, if possible. The lawyer may also advise the client to contact the Law Society if they have any concerns.

Record-Keeping Requirements

If confidential client information is disclosed, the legal professional should record this disclosure in accordance with commentary [5] of rule 3.3-3, and retain the note:

[5] If confidential information is disclosed under rule 3.3-3, the lawyer should prepare a written note as soon as possible, which should include:

(a) the date and time of the communication in which the disclosure is made;

(b) the grounds in support of the lawyer’s decision to communicate the information, including the harm intended to be prevented, the identity of the person who prompted communication of the information as well as the identity of the person or group of persons exposed to the harm; and

(c) the content of the communication, the method of communication used and the identity of the person to whom the communication was made.

Preventative Measures

Lawyers should also consider screening clients prior to personal contact, to minimize the risk of coming into contact with the virus. Part of the advance screening could include a discussion about the current legal obligations to self-isolate and the possibility that information about the client may be disclosed to health authorities.

The Law Society Practice Advisors are available to answer questions about practice and professional obligations.