This post is part of our series “The Ethics of Freelance Lawyering” and answers a question we are often asked about freelance lawyers and our duty of confidentiality.
How do freelance lawyers maintain their duty of confidentiality?
In Ontario, Rule 3.3-1 of the Rules of Professional Conduct sets out the duty of confidentiality (a similar rule can be found in each jurisdiction in Canada). This means a lawyer at all times must:
“hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless
(a) expressly or impliedly authorized by the client;
(b) required by law or by order of a tribunal of competent jurisdiction to do so;
(c) required to provide the information to the Law Society; or
(d) otherwise permitted by the rules. (i.e. justified or permitted disclosure).”
All of Flex’s freelance lawyers who take on legal work are called to the Bar in at least one province in Canada and licensed with the law society or regulator of that province. This means that they must abide by any applicable Rules or Code of Professional Conduct. Therefore, they are required to honour their duty of confidentiality, just like any other lawyer. So, in short, they keep the information they receive in strict confidence!
Further, both our Membership Terms with our freelance lawyers and the sample freelance lawyer agreement we provide include clauses dealing with the duty of confidentiality.
As a lawyer who hires a freelance lawyer how do I maintain my duty of confidentiality?
Lawyers should obtain consent from their client before disclosing any of their client’s confidential information to a freelance lawyer. Often law firms who use freelance lawyers include a clause in their retainer agreement and explain to their clients that from time to time, in order to keep legal costs down, they may employ the use of a freelance lawyer and that the client consents to their information being disclosed to the freelance lawyer for that purpose. Clients are happy that their lawyers are seeking out ways to minimize their legal fees. They just need to know where their information is going. (If you would like to see a sample clause for your retainer, please contact us.)
What about Flex Legal?
Flex Legal does not have access to any confidential information or documentation relating to the matters worked on by the freelance lawyers in our network. We only obtain general information from our lawyer clients (i.e. they need assistance with drafting summary judgment motion material or a factum for an interlocutory injunction, etc.) before we match the lawyer client with a freelance lawyer.
Make sense? Still have questions? Let us know!
Note: Originally published in 2019 and updated in 2024. This post provides an overview only and does not constitute legal advice.
