Lawyer free to use documents received from client and produced to opposing party

Yesterday the Court of Appeal for Ontario held that the deemed undertaking rule does not apply to documents that a lawyer receives from a client for the purposes of documentary production. The Court held that such documents are not obtained by counsel under compulsion by the Rules and that the purpose of the deemed undertaking is only to protect against misuse of information received by a party to litigation.

In this case, a lawyer wanted to use documents he received from his former client in her matrimonial dispute to defend a defamation claim brought by the former client’s ex-spouse. The Court’s disposition allows him to do so, subject to the former client’s right to a return of her documents and the lawyer’s ability to obtain an order for third-party production.

Sobeski v Mamo, 2012 ONCA 560 (CanLII).

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