11.9 Challenges About Protecting Client Information
If the former firm’s client or the former firm has concerns about whether the client’s information is being adequately protected, they can request information from the new firm. The new firm must then advise them of the measures it is taking to protect confidential information, and may also provide an affidavit or statutory declaration confirming either that:
- The transferring lawyer does not have any confidential information, OR
- That the transferring lawyer has not disclosed any confidential information to other members of the new firm.
Lawyer A worked at ABC Firm, a firm of 10 lawyers, which acted for the husband in a divorce action. He was unhappy at ABC and applied for a position at XYZ Firm, a firm of 6 lawyers. XYZ acted for the wife in that same divorce action. Lawyer A did research for the partner at ABC with respect to an issue in the divorce action. Lawyer A does not remember much about the matter—it was two years earlier when he was an articling student and was not involved apart from that.
It is possible that the partner, in giving instructions to Lawyer A to research an issue, disclosed confidential information. Lawyer A should think carefully about what information he may have. If he thinks he may have confidential information, then XYZ should ask the husband to consent (through the lawyers at ABC Firm) to its continued representation of the wife. If the husband will not consent, then XYZ must ensure that it takes reasonable measures to ensure that confidential information that A may have is not disclosed to any member of ABC. The file for the wife should be “quarantined” from the regular filing system, both physically and electronically, Lawyer A’s workplace should not be close to the workspaces of ABC’s team representing the wife, and both Lawyer A and the ABC lawyers and staff should provide undertakings to adhere to the terms of the ethical screen.
The XYZ firm may be required to defend its position in court if the ABC firm pursues a disqualification motion. In such cases it is essential to establish that the ethical screen was in place prior to the date on which the transferring lawyer joined the new firm.