Client confidentiality is at the heart of your new attorney-client relationship. If your lawyer is to represent you effectively, it is very important for you to feel a sense of trust and confidence in your legal counsel. Your legal issue may involve a number of sensitive and private matters. Understand that all attorneys are held to very strict standards when it comes to keeping your information confidential.
As a client, you are expected to share with your attorney as much information as needed to further the cause of your case. However, as a client you’re also entitled to understand what your rights are concerning the standards of confidentiality. What follows is an explanation of the various confidentiality standards that all lawyers are held to.
What Confidentiality Standards is my Lawyer Bound To?
To begin with, you should understand that there are two basic standards that lawyers must adhere to when it comes to keeping your personal information confidential. The first is called the lawyer’sDuty of Confidentiality, while the second is called theAttorney-Client Privilege. Each of these will be discussed in detail below.
What is the Lawyer’s Duty of Confidentiality?
To put it briefly, the Duty of Confidentiality states that your lawyer cannot reveal anything that is related to your legal representation without your consent. Thus, your lawyer is prohibited from revealing any matter that might be related to the legal claim for which you have hired them.
This is a very broad standard which applies to all matters related to your claim, not just confidential communications or communications that were intended to be confidential. So, for example, if you hired a lawyer for a divorce claim and have told them information regarding a previous divorce, they are not supposed to disclose this information to other persons since it may be related to your claim.
What are Some Other Features of the Duty of Confidentiality?
The source of the information does not matter with respects to the duty of confidentiality. If your lawyer has learned information about you from a person besides yourself, they cannot disclose the information if it is related to your claim.
Also, the duty of confidentiality begins evenbeforea lawyer-client relationship has officially been formed. When you initially meet with an attorney, you will likely have to disclose a certain amount of information even before you hire them. This is to allow the attorney a chance to see if they can take your case or not. This information is also to be kept confidential if it relates to your particular legal claim. The duty also applies even if no formal lawyer-client relationship is ever formed.
Finally, the duty of confidentiality extends indefinitely, even after the case is resolved and the attorney-client relationship has formally ended. Your lawyer is not allowed to disclose confidential information related to your claim after they are done representing you in court.
The main thing to remember with the Duty of Confidentiality is that it only pertains to matters related to your legal claim.Thus, your lawyer may be allowed to reveal information that is not related to your legal representation.
What is the “Attorney – Client Privilege”?
On the other hand, the Attorney–Client Privilege is a much stricter standard. It protects communications between a client and their attorney for the purpose of obtaining legal advice or assistance. It protects both the client and the attorney from being compelled to reveal confidential communications in a court of law.
In order for a communication to be protected under the attorney-client privilege, the following five elements must be met:
- The person claiming the privilege must be a client, or had sought to be a client at the time of communication
- The person receiving the communication must be acting as the person’s lawyer
- The communication must be private, that is, between a client and attorney only, with no involvement from non-clients
- The communication must be made for the purpose of securing legal advice, services, opinions, or assistance in a legal proceeding
- The privilege may only be waived by the client, and they must demonstrate informed consent to waive– the lawyer cannot waive the privilege for you
Unlike the duty of confidentiality, the attorney-client privilege is available only where a formal attorney–client relationship has been formally established. Under federal laws, the privilege continues even after representation is complete. It continues even after the client has become deceased, unless they have given prior permission to make a disclosure. State laws vary regarding how long the privilege lasts.
The attorney–client privilege is actually an evidentiary rule and is intended to encourage frank and open dialogue between the client and the attorney they have hired. The idea is that if you know that you or your attorney will not be required to disclose sensitive information, you will be more likely to provide them with detailed disclosures. The attorney–client privilege is one of the most powerful evidentiary rules available to clients.
Are there Circumstances When My Attorney can Reveal My Confidential Information?
Yes, there are exceptions to both the duty of confidentiality and the attorney–client privilege. If the communication falls into any of these exceptions, the attorney’s obligation to keep the information secret is no longer applicable, and they may reveal the information before a judge or other authorities.
Information that is normally protected under the Duty of Confidentiality may be disclosed under the following circumstances:
- Consent: Information may be revealed if the client consents to disclosure. This may either be express (i.e., oral or in writing) or implied from the client’s conduct. The client must be informed as to the consequences of disclosure.
- Self–Defense of Attorney: The attorney can disclose confidential information if it is necessary to defend themselves against a personal claim that the client filed against them.
- Prevent Client from Committing a Crime: If the client is about to commit a crime involving the death or serious bodily injury of another, the attorney can disclose information regarding the crime. This also applies to crimes involving serious financial loss.
- Court Order or Rule of Law: If a court orders the attorney to make a disclosure, or if it is required by law, they will be required to follow the judge’s instructions.
Exceptions to the attorney–client privilege include:
- Disclosure by Client: If the client discloses information to a party other than their attorney or staff, they have effectively waived (lost) the privilege. The communication can then be used in court. The client can also consent to disclosure.
- Crime/Fraud: If the client sought the lawyer’s services in order to commit or aid in the commission of the crime, the lawyer can reveal the information.
- Joint Client Exception: Suppose the attorney is hired by two people to represent them as joint clients. If they subsequently file a lawsuit between themselves, either party can use the attorney as a witness if they desire. The attorney might then disclose information about either party.
- Self–Defense of Attorney: As a defense in court, the attorney can disclose the client’s information if the client chooses to sue them.
Thus, it is important for you as a client to be aware of the limits of the confidentiality standards. Understand that there are certain circumstances wherein the dialogue between you and your attorney can be disclosed, though this is relatively rare.
To Whom Can My Confidential Information be Disclosed?
There are certain instances when confidential information might be required for submission as evidence in court. For example, if the opposing lawyer makes a formal request for information, a judge might require that it be disclosed. Such formal requests are governed by the various evidentiary rules, and will vary by jurisdiction.
Also, it is common practice for several lawyers in the same firm to do work on one case. In this situation, your communications might be made known to other lawyers in the firm. This is typically allowed by state laws, since the lawyers in the same firm are bound under the same confidentiality standards. However, if you are opposed to a different attorney performing work on your case, you should inform your lawyer of your concerns.
What Happens to My information Once the Case is Over?
Both the duty of confidentiality and the attorney–client privilege continue even after the case has been concluded. No matter what the results of the case are, your attorney is not allowed to disclose any information according to the duty and the privilege.
This is why it is always important to inform your attorney if a different attorney has worked on your case before, or has worked on a similar case you were involved in. Such information remains confidential and can have consequences regarding what may or may not be disclosed in a subsequent case. Be sure to inform your lawyer of any past lawsuits as well as the entire history surrounding your legal claim.
What is the relationship between confidentiality and the attorney-client privilege? ›
The attorney-client privilege is a rule that protects the confidentiality of communications between lawyers and clients. Under the rule, attorneys may not divulge their clients' secrets, nor may others force them to.What are two exceptions to attorney-client confidentiality? ›
- Death of a Client. The privilege may be breached upon the death of a testator-client if litigation ensues between the decedent's heirs, legatees or other parties claiming under the deceased client.
- Fiduciary Duty. ...
- Crime or Fraud Exception. ...
- Common Interest Exception.
Confidentiality can be defined in terms of a counselor's duty not to disclose information about their client, while privileged communication in a counseling context can be defined in terms of a client's privilege not to have their counselor disclose information about them in a legal setting such as a court of law.Is everything I say to a lawyer confidential? ›
The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.Are there no differences between confidentiality and attorney-client privilege? ›
The difference? Very simply put, attorney-client privilege stems from rules of EVIDENCE, whereas confidentiality stems from rules of ETHICS. But that's not all. Starting with confidentiality, every state has Rules of Professional Conduct that apply to lawyers who are licensed in that state.Is privilege and confidentiality the same? ›
In order to be privileged, the communication must be confidential (e.g. communications between a lawyer and a client are presumed to be confidential).What are three limits to confidentiality? ›
- Limits Imposed Voluntarily (i.e., Not Legally Required) ...
- Limits That Can Be Imposed by Law (i.e., Possible “Involuntary” Disclosures) ...
- Possible Limitations on Confidentiality Created by Use of Technology in the Setting.
- There are reasonable grounds to believe that you are likely to harm yourself or another person.
- There are reasonable grounds to believe that a child under the age of 17 years is at risk of being abused or neglected.
- Ask for consent to share information.
- Consider safeguarding when sharing information.
- Be aware of the information you have and whether it is confidential.
- Keep records whenever you share confidential information.
- Be up to date on the laws and rules surrounding confidentiality.
Contemporary social workers understand that there are exceptions to clients' confidentiality rights in extraordinary circumstances—for example, when clients threaten to harm themselves or others or abuse or neglect a child or older person.
Which of the following may not be protected under the attorney-client privilege? ›
The privilege extends only to communications that the client intends to be confidential. Communications made in non-private settings, or in the presence of third persons unnecessary to accomplish the purpose for which the attorney was consulted, are not confidential and are not protected by the privilege.What should you not say to your lawyer? ›
- My case will be easy money for you. ...
- I have already done the work for you. ...
- I forgot I had an appointment. ...
- I've already talked to a lot of other lawyers. ...
- I don't have all my documents.
When can a solicitor breach confidentiality? A solicitor cannot be under a duty of confidentiality if the client is trying to use them or the firm to commit fraud or other crimes. A client cannot make a solicitor the confidant of a crime and expect them to close up their lips upon any secret they dare to disclose.Can I share confidential emails with my lawyer? ›
Attorney-client privilege is a cornerstone of the American legal system. It is a legal right that encourages full and frank communication between attorneys and their clients, and ensures that clients can feel confident that their discussions with their attorneys will remain private.What is the difference between confidentiality and legal professional privilege? ›
LPP applies to communications, not documents (but may exist in documents that disclose communications). LPP can apply even if the communication was not sent. It is about the purpose at the time of creation. Confidentiality is pivotal to privilege – was the document truly confidential, and did it remain so?When should I use privileged and confidential? ›
If an email actually is privileged, then putting "Privileged and Confidential" in the email subject line and/or at the top of the email body is the best way to signal that you believe it is covered by privilege.Why do lawyers write privileged and confidential? ›
The reason for according such high regard for solicitor-client privilege is simple: because communications between a lawyer and his client are essential for the operation of the justice system, these communications must be given absolute protection.What is the correlation between privacy and confidentiality? ›
Confidentiality controls protect against the unauthorized use of information already in the hands of an institution, whereas privacy protects the rights of an individual to control the information that the institution collects, maintains and shares with others.What other privileged relationships exist in addition to the attorney client relationship? ›
There are also various circumstances under which privileged communication can be waived, either deliberately or unintentionally. Commonly cited relationships where privileged communication exists are those between attorney and client, doctor–or therapist–and patient, and priest and parishioner.What is the attorney-client privilege and what is its purpose? ›
It prevents a lawyer from being compelled to testify against his/her client. The purpose underlying this privilege is to ensure that clients receive accurate and competent legal advice by encouraging full disclosure to their lawyer without fear that the information will be revealed to others.