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Council Interpretation 208
Confidentiality of Information
208/1 The duty to keep a client's affairs confidential should not be confused with the legal concept of privilege. The duty of confidentiality precludes the member from disclosing a client's affairs without the knowledge and consent of the client. The duty of confidentiality to clients and former clients does not expire with time. As confidential information becomes dated, the duty may be of less practical concern to a client, but the duty continues.
208/2 The duty of confidentiality does not excuse a member from complying with a legal requirement to disclose the information. However, the courts have held that a member faced with a subpoena or other request to disclose information should be aware of the member's obligation to bring to the attention of the court or other authority the member's duty of confidentiality to the client. If a member is in doubt as to the legitimacy or scope of a claim for disclosure, legal advice should be sought. Ultimately, in a dispute, a court will determine, based on the facts, whether a member should maintain the confidentiality of client information.
208/3 A member or student will not be in contravention of any rule governing confidentiality by reason of obtaining legal advice with respect to his or her duty of confidentiality.
208/4 One of the underlying issues when dealing with conflicts of interest is controlling the degree to which persons in a firm share client confidences. (See also Rule 210.) Rule 208 prohibits a member's or a student's improper use of confidential client information, but does not restrain its disclosure within a firm. Members may find they are in a position of conflict due to the general legal presumption that the knowledge of one person in a firm is shared with or attributed to others in the firm.
The legal presumption that knowledge is shared within a firm may be rebutted if the firm can demonstrate that effective institutional mechanisms are in place to limit the sharing of confidential information within the firm.
This basis of sharing information within a firm recognizes that different persons in a firm have different needs for information in order to properly fulfill their responsibilities. For example:
(a) An assurance provider must have information on all aspects of a client's affairs that might affect the assurance provider's opinion on the financial statements.
(b) A tax practitioner, in the course of preparing or reviewing an income tax return, must have information on all aspects of a client's affairs that might affect the income tax return.
(c) A forensic accountant undertaking an investigation of a client's affairs might only require information relating to the subject of the inquiry.
(d) A member who is providing a professional opinion on a matter may wish to seek the advice of another member of the firm.
208/5 Where appropriate, members and firms should also inform clients and potential clients that the use of institutional mechanisms, which safeguard their confidential information, necessarily means that a member serving a particular client may not be aware of information that is confidential to another client, which would assist the member's client and advance that client's interest.
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