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L E GAL E THICS BY PHILIP SLAYTON Traditional notions of privacy just don't hold water in the modern Internet age. are a lot of rules supposed to protect personal informa- tion. Meanwhile, with mod- ern technology, it has become easy to find out just about anything about just about anybody. Nothing seems safe anymore. What's a lawyer, sit- ting on a mound of interesting and supposedly confidential information about his client and others, supposed to do in this complicated environ- ment? What's the point of be- ing discreet if anyone with an Internet connection can, le- gally or illicitly, find out what you know? In the old days, the basic I rules were straightforward enough and their applica- tion seemed simple. A lawyer could not divulge information acquired in the course of the professional relationship un- less disclosure was authorized by the client or required by law. A lawyer wasn't even supposed to tell anyone the name of a client. Not even pillow talk was permissible. Human nature be- ing what it is, there were — of course — egregious breaches of these old-fashioned strictures (particularly, one suspects, when it came to pillow talk). Once I was in an elevator with two lawyers from the same firm who went on and on about a file they were working on. Between street level and the seventh floor they pretty much gave their cli- ent's store away to a bunch of strangers. And not long ago, my wife and I were having dinner in a restaurant next to a party of lawyers loudly discussing litigation strategy in an important trial that I'd read about in the newspapers that morning. Oh, the frailty of human nature, particularly aſter a martini or two! 28 NO VEMBER / DECEMBER 2008 www. mag.com t's bewildering. We hear about the importance of pri- vacy all the time, and there Anyway, it's a new world now. In a speech at last August's Canadian Bar As- sociation annual meeting, Jennifer Stoddart, Canada's privacy commissioner, por- tentously described what she called the "radical transfor- mation of the privacy land- scape." Stoddart pointed out that Canadian law firms are subject to the Personal In- formation Protection and Electronic Documents Act. She told the CBA there was "a clear need for more prac- tical guidance for lawyers" on privacy issues. The pri- vacy commissioner's web site (www.privcom.gc.ca) gives some help in its "legal corner." It all seems so com- plicated and confusing. In her CBA speech, Stod- dart also suggested the "broad public" may not need to know the names and intimate personal details of individuals involved in litigation. The Internet, said Stoddart, spelled the end of "the concept of practical obscurity" which protected privacy de facto. Maybe, she mused, initials could re- place names in reporting cases. But this, like so much current chatter about privacy, is whistling past the graveyard. It is al- ready widely accepted that the principle of open courts trumps privacy rights. The Supreme Court of Canada, and courts in several provinces, actively post court documents online (with some thought to minimal privacy considerations, such as re- moving the names of minors). In September 2005, the Canadian Judicial Council, follow- ing a broad consultative process, published a model policy for access to court records. The policy endorsed the principle of openness and retained the presumption that all court records ILLUSTRATION: NICK CRAINE