Confidentiality and the Attorney – Client Privilege
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’s Duty of Confidentiality, while the second is called the Attorney-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 even before a 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.