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June 11, 2009

Comments

Alice Woolley

In Canada there is an exception to privilege for "innocence at stake". Under this privilege an accused may compel production/testimony that violates a 3rd party's privilege, albeit under relatively narrow circumstances. When the exception is exercised rights accrue to the third party - specifically use immunity and derivative use immunity. Interestingly, there is no matching exception to confidentiality under the various provincial codes of conduct. So the lawyer for the third party can be put in the difficult position of knowing that someone else could compel production of the information, but being unable to reveal the information without violating her confidentiality obligations. This seems to create an anamoly which the Mass. rules would avoid. On the other hand, it seems to me that to have the confidentiality exception without the kind of protections that arise under the exception to privilege goes too far. The third party with the privilege is entitled to some protection from the dangers that could arise upon the information being revealed (i.e., prosecution and conviction).

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