Accessible Practice: Practice tips for maintaining privilege and confidentiality for a client accompanied by a support person

Q: What are the obligations and best practices for lawyers and paralegals working with clients who are accompanied by a support person?

Introduction

According to the Integrated Accessibility Standards under the Accessibility for Ontarians with Disabilities Act (AODA), a support person is someone who accompanies a person with a disability in order to help with communication, mobility, personal care or medical needs, or with access to goods, services, or facilities. They may be a paid professional, a volunteer, a family member, a friend, a caseworker or a social worker. A support person is a disability-related accommodation.

Ontario’s Human Rights Code (Code), and the Law Society of Ontario’s Rules of Professional Conduct and Paralegal Rules of Conduct, each prohibit any form of discrimination on the basis of disability in the provision of legal services. Further, the Code requires lawyers and paralegals to accommodate clients with disabilities to the point of undue hardship. 

In addition to the obligations set out in the AODA and the Code, the Rules of Professional Conductand Paralegal Rules of Conduct mandate that lawyers and paralegals must ensure that no client receives inferior service on the basis of disability. This means that for some kinds of accommodations, the lawyer or paralegal may be required to engage in additional steps to ensure that their professional obligations are fulfilled. In particular, additional steps may be required to maintain privilege and confidentiality for a client who is accompanied by a support person.

Privilege and Confidentiality: The Law

Privilege is of utmost importance to the relationship between a lawyer or paralegal and their client. Privilege embodies the concept that effective and fulsome legal representation requires a relationship in which clients can frankly and candidly disclose all material facts in confidence. In this regard, it has been described as a “fundamental civil and legal right” that plays a pivotal role in the Canadian justice system. 

The general principle of privilege is such that communication in the presence of a third-party vitiates the shroud of confidentiality and undermines the very nature of the relationship. It is said that this may amount to a waiver of the privilege over that communication because the presence of a third-party indicates that the communication was not meant to be made in confidence.

At first glance, it is difficult to reconcile the above framework with a scenario where a person with a disability is accompanied by a support person to access legal services. Despite this, however, the law suggests that where the presence of the third-party is required to advance the client’s interests and where it was understood that what transpired would be kept in confidence, privilege is not waived.

Case Law Examples

Case law on this issue is instructive about how the above framework applies in practice:

Hannis v Tompkins, [2001] OJ No 5588

The Ontario Superior Court had the opportunity to engage with the issue of support-type persons being a part of privileged communications in Hannis v Tompkins. This case involved a dispute over the management of Tompkins’ estate. Tompkins was a person with Alzheimer’s disease and could not manage her own affairs. Hannis, a beneficiary of the estate, brought an application alleging that Tompkins’ power of attorney mismanaged the estate. 

Among other arguments, Hannis requested disclosure of certain notes and records from a meeting attended by the power of attorney, a representative from the Alzheimer’s Society, and the lawyer for the estate. Hannis argued that privilege was waived because the representative was a third-party. The estate opposed the request on the basis that privilege extended to cover those notes and records.

After a review of the rationale behind solicitor-client privilege, the Court held that where a third-party’s presence was required to properly understand or facilitate communication, the third-party “will effectively be the client’s agent” and is instrumental in forming the relationship between the lawyer and the client. The Court commented: 

… Clients commonly, and for a variety of reasons, have friends or relatives accompany them to meet a lawyer. They may be nervous about speaking to a lawyer; may feel that he/she will not understand the lawyer; they may distrust lawyers and want a witness present or may simply feel more comfortable with another person present. In each of these circumstances, the client believes that his/her ability to communicate with the solicitor will be enhanced by a third party’s company and so that person’s presence is required to advance the client’s interest. (para 45)

The Court further found that the standard of what is “required to advance the client’s interests” should not be a high bar and that privilege was not something with which to lightly interfere. In this respect, the Court inferred that the representative from the Alzheimer’s Society was in attendance at the meeting in order to advance the client’s interest. The Court concluded, therefore, that their presence did not amount to a waiver of privilege.

While the Court used language of “agent” and “friends or relatives” to describe the role of third-parties, the above comments could apply similarly and more broadly to a support person attending a meeting as a disability-related accommodation.

MacPherson v Pagecorp-Peel Properties, 2018 HRTO 1280

A broader application of the principles articulated in Hannis is exemplified in a recent Human Rights Tribunal of Ontario decision, MacPherson v Pagecorp-Peel Properties. In that case, the respondent requested disclosure of notes and records taken in a meeting between the applicant and her lawyer. The applicant was a person who identified as having a disability and her disability-related accommodation included having a support person attend the meeting with her. 

The respondent argued that because the notes and records were disclosed in the presence of a third-party (the support person), the applicant had waived privilege over that material. The applicant took the position that the notes and records were protected by solicitor-client privilege. The Tribunal sided with the applicant and dismissed the respondent’s request for disclosure, stating:

…I am not persuaded that the presence of a support person during the applicant’s meetings with legal counsel is tantamount to her waiving privilege. First, the applicant has not expressly waived privilege, nor has she objectively demonstrated an intention to waive privilege. While the applicant’s confidential legal information was disclosed to a third party, is it evidence that the context of that disclosure was that her support person attended meetings to facilitate her institution of and/or preparation for legal proceedings.

In this way, the Tribunal found that the support person was in attendance in order to advance the interests of the applicant and was there with the understanding that the communications were to be held in confidence. The Tribunal concluded that, following Hannis, “solicitor-client privileged is not waived merely because an applicant has a friend attend a meeting with a lawyer.” (para 28)

Opportunity for Law Reform

The current legal framework is in line with the Code to the extent that it recognizes that a support person as a disability-related accommodation enhances and facilitates a person’s access to legal services. However, placing the bulk of the legal analysis on whether the accompaniment of a support person waives privilege inappropriately shifts the burden to the client accompanied by a support person to demonstrated privilege when it would otherwise not be challenged.

A better approach is to apply a disability-rights lens so that communication between a lawyer and a client accompanied by a support person is presumptively privileged communication, unless compelling evidence suggested otherwise. The factors suggested by the Court – whether the attendance of the person advanced the interests of the applicant and whether they understood the communications were in confidence – might properly assist at this second stage of the analysis. If the evidence indicated that these factors were absent, then the presumption of privilege may be set aside.

While this approach may appear to only be subtly different from the approach currently taken by the Court and Tribunal, the impact is significant in light of the fundamental importance of ensuring that clients accompanied by support persons are provided equal legal services with respect to maintaining confidentiality and privilege.

Best Practice Tips

A number of best practice tips arise from the above case analyses that may assist lawyers and paralegals in ensuring that their clients’ privilege and confidentiality is maintained when they are accompanied by support persons:

• Receive clear and documented instructions from the client that they consent to having the support person in attendance at the meeting;
• Advise the client on privilege and the importance of maintaining confidentiality;
• Advise the support person about the importance of privilege and maintaining confidentiality;
• Where appropriate, have the support person  sign a confidentiality agreement; and
• Ensure all questions and communications are directed to the client, not the support person, including in-person meetings, phone calls and written communication.

For lawyers and paralegals who have further questions about how to appropriately accommodate clients with disabilities, you are encouraged to make an appointment with an ARCH lawyer for summary advice and legal information on this issue.