Canada: Eyes Everywhere: What Duties Of Confidentiality Do Lawyers Owe To Their Clients?

Last Updated: March 13 2014
Article by Lisa R. Lifshitz

First published: February 17, 2014, Canadian Lawyer Magazine, "The IT Girl" column (

It has been a difficult year so far for Canadian civil libertarians as U.S. whistle-blower Edward Snowden's massive exposure of the National Security Agency's metadata collection has spilled into Canada.

On Jan. 30, the CBC reported a 27-page PowerPoint presentation entitled "IP Profiling Analytics & Mission Impacts" dated May 2012 retrieved by Snowden and later obtained by CBC News showed our own Communications Security Establishment Canada used information from the free Internet services at Vancouver and Toronto airports to track the metadata from the wireless devices of thousands of airline passengers for a two-week period after they left airport terminals in 2012.

While CSEC is legally prohibited from targeting Canadians or anyone in Canada without a warrant, thousands of Canadian smartphone and laptop signals were allegedly intercepted. CSEC was supposedly able to track travellers for a week or more as they and their wireless devices showed up in other Wi-Fi "hot spots" in cities across Canada and even at U.S. airports, including hotels, coffee shops and restaurants, libraries, ground transportation hubs, and any number of places with public wireless Internet access.

CBC reported this tracking operation was the "trial run" for a powerful new software program CSEC was developing with help from the NSA.

The information allegedly collected was "metadata," information about the digital envelope that carries specific correspondences over a network, which can include an individual's phone numbers, date, time, duration, and location of a communication, the wireless device IDs or addresses of devices on the other end of the message or call, Internet routing information — but not the substance of the communication itself.

CSEC's position is its activities are authorized under s. 273.64 of the National Defence Act and further "guided by a robust framework of Ministerial Directives and operational policies." CSEC does not consider metadata to be private communication, based on the wording of current legislation.

These allegations only added fuel to a growing fire as earlier this year, CSEC's web site noted it "incidentally" intercepts Canadian communications or information when fulfilling its mandate. CSEC further acknowledged its capabilities may, under "the Assistance Mandate, be employed by national security or law enforcement agencies in a variety of circumstances — including intercept operations against a Canadian or individuals in Canada. In those cases, CSE is acting in an assistance role, is operating under the requesting agency's legal authority (such as a warrant) and is subject to the provisions of their mandate and policies."

John Forster, the head of CSEC, appeared Feb. 3 before the Senate's security and defence committee and while denying the mass surveillance of Canadians, did confirm metadata is still being collected. In response, the federal interim privacy commissioner and Ontario's privacy commissioner have waded in, calling for greater clarification regarding the use of metadata and for increased oversight of Canada's intelligence services more generally.

On Jan. 28, Chantal Bernier, the interim federal privacy commissioner, tabled a Special Report to Parliament entitled "Checks and Controls: Reinforcing Privacy Protection and Oversight for the Canadian Intelligence Community in an Era of Cyber-Surveillance" that called for greater transparency, the augmentation of existing review mechanisms, and provided an extensive suite of recommendations for improvement.

The OPC grouped 10 broader areas for improvement under three major categories:

(i) augmenting existing review and reporting mechanisms (namely, requiring CSEC to proactively disclose annual statistics on cases where it assists other federal agencies with requests for interception; requiring CSEC to produce an annual report for the minister to table in Parliament; extending existing reporting requirements on use of surveillance; updating the overview of Canada's Intelligence Community);

(ii) modernizing Canada's privacy protection regime (namely, reforming existing privacy legislation to curb over-collection and control disclosure; regulating access to open-source information and investigations exploiting publically available personal information sources); and

(iii) strengthening the current accountability regime (namely by bolstering the powers of the federal bodies reviewing national security operations; clarifying and updating other legal authorities in intelligence operations; and increasing coordination of and investment in Parliament's oversight role).

I recommend every Canadian review this thorough and thoughtful document and hope its recommendations are taken seriously by the government — which, so far, has unfortunately not been the case given the Harper government's spirited support of CSEC's interpretation of the metadata issue.

However, until significant changes are made to the way in which surveillance is conducted in Canada, it would reasonably appear individual's metadata is being targeted in Canada, not to mention what happens when Canadians cross the border into the U.S. and other countries.

Given these recent revelations, it is worth asking how Canadian lawyers like me and others can protect the confidentiality of their clients' information when they use cellphones, smartphones, and other technology. Should these recent intelligence revelations impact how we "do business" with our clients?

This issue has begun to be actively examined in the U.S., where there are law review articles, and at least some state ethics opinions, that suggest a lawyer has an ethical duty to warn their clients about the inherent risks of technology those clients use in communications with their counsel. For example, in Opinion 96-1, the Iowa Supreme Court Board of Professional Ethics and Conduct has concluded that before sending "sensitive material" over the Internet, the lawyer must either "encrypt it or receive written acknowledgement of the risks from the client."

The American Bar Association's Standing Committee on Ethics and Professional Responsibility released its Formal Opinion 11-459 in August 2011 regarding a lawyers' "Duty to Protect the Confidentiality of E-mail Communications with One's Client." This opinion noted that:

A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, to which a third party may gain access. The risk may vary. Whenever a lawyer communicates with a client by e-mail, the lawyer must first consider whether, given the client's situation, there is a significant risk that third parties will have access to the communications. If so, the lawyer must take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client.

The Opinion does not make clear what is meant by "a significant risk that a third party may gain access", but given the recent Snowden revelations, at least some Americans are starting to consider whether there is a significant risk to almost any communications a third party, e.g. the NSA, may gain access and whether lawyers have a proactive duty to warn their clients about such risks.

Ontario's Rules of Professional Conduct oblige lawyers, per s. 2.03 (1), to at all times "hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and [lawyers] shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so."

In its article "Professional Responsibilities when Using Technology", the Law Society of Upper Canada noted lawyers have an obligation to maintain confidentiality, i.e.: When using electronic means of communication (e.g. the Internet, cellular telephones, and facsimile machines) you must ensure communications with or about a client reflect the same care and concern for matters of privilege and confidentiality normally expected when using any other form of communication.

The Canadian Bar Association's "Information to Supplement the Code of Professional Conduct Guidelines for Practising Ethically with New Information Technologies" written in the pre-Snowden era, seems to place at least some of the burden on lawyers to protect their clients from the "new technology."

"Lawyers must ensure that electronic communications with or about a client are secure and not accessible to unauthorized individuals. When communicating confidential information to or about a client, lawyers should employ reasonably appropriate means to minimize the risk of disclosure or interception of the information," it says, going to address the issue further.

Interestingly, the same document later notes "lawyers have an ethical obligation, when transmitting documents electronically, to exercise reasonable care to ensure that clients' confidential information is not disclosed in the metadata."

If this is the case, how can lawyers continue to knowingly use technology that is clearly not secure from interception from our own government agencies? Is the above guideline still reasonable and/or relevant given recent revelations about surveillance in Canada? Do lawyers have to become security experts and employ certain minimum levels of encryption and other security countermeasures to continue to meet their professional obligations?

Certainly more current guidance and clarification from law societies or the Canadian Bar Association in this area would be welcome/helpful.

It is easy enough for lawyers to include vaguely worded statements in their retainer letters concerning the risks of technology as many of us already do, but harder to change our behaviour. In our zeal to be responsive to our clients, perhaps it is no longer legal best practice (or even acceptable practice) to connect to public Wi-Fi services in order to respond to client e-mails or otherwise engage in telephone discussions with clients in public places in order to meet our ongoing duties of confidentiality.

Depending on the nature of our clients' practices, this may be a discussion to be had with our clients individually — and in person

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Lisa R. Lifshitz
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions