Lawyers owe a duty of care not only to their Will and estate planning clients but also to the beneficiaries of those clients’ estates. As a result, lawyers are professionally required to conduct the planning process themselves to confirm the capacity of the clients, the intentions of the clients, and the understanding by the clients of what is ultimately implemented to carry out the Will and estate plan. Lawyers cannot delegate the responsibility for conducting the planning process to others – not even staff in their own offices.
Confidentiality in the legal context refers to the rule of professional conduct for lawyers that requires them to keep private the information they obtain from clients although there are some minor exceptions to when confidentiality applies. In the estate planning context, it is common for lawyers to act for both spouses. In this situation, the rules for lawyers in some jurisdictions indicate that the lawyer cannot keep confidential information obtained from one spouse as against the other because of the joint retainer. This just reflects the broader rule that applies to other forms of joint retainers and is consistent with the rules for lawyers about conflicts of interest. Lawyers cannot take sides between clients when they represent more than one party.
Privilege is similar to confidentiality except that it is a legal rule that prevents lawyers from disclosing client information with minor exceptions and generally it requires a court order to break privilege. There are several kinds of privilege but the one most relevant to estate planning is “solicitor-client privilege”. If you discuss your estate plans, including the tax law elements, with anyone who is not your lawyer or retained by your lawyer to assist in the process then privilege can be lost permanently. This means that third parties such as banks or accounting firms can be compelled to disclose information that would otherwise be protected. Who would want access to your privileged information? The Canada Revenue Agency may want it if they suspect you have been engaging in planning activities to avoid taxes in ways that do not comply with the Income Tax Act. Alternatively, if someone wanted to challenge your estate plans because they do not think they are getting what they should, they may want to gain access to your information. Privilege is not absolute but it makes it very difficult to gain access to information collected by your lawyer.