We all know that as a future lawyer, you will be expected to keep your client’s secrets. Even before law school, I am sure you have heard that communications with attorneys are “privileged” and “confidential.” Are privileged and confidential communications the same thing? This complicated distinction is a professors’ favorite on professional responsibility exams. I am here to help.
Both concepts involve information that you will be required to keep private even after the attorney-client relationship has been terminated. The idea is that when clients feel comfortable that their communications with their lawyer will be kept under wraps, they will be more candid and as a result, lawyers can provide better representation.
So, what is confidentiality? Confidentiality is an ethical rule rooted in agency law (whereas attorney client privilege is an evidentiary rule). Each state has a set of rules to which attorneys must adhere in their practice or risk discipline, so check for the specific requirements in your state of practice. In most Professional Responsibility courses, professors teach according to the ABA Model Rules of Professional Conduct, so I will use them for our discussion purposes as well. ABA Rule 1.6(a) is the relevant rule for confidentiality:
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
Confidentiality is broader than attorney client privilege in that it protects not only matters communicated in confidence, but all matters related to the representation, even if the information came from a source other than the client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. As noted in Rule 1.6(b), there are some exceptions under which attorneys can disclose client confidences. Read carefully, the key word to these Rule 1.6(b) exceptions is can, not shall or must.
Let's go through an example. If a neighbor asks, “Hey, I saw Maria come into your office the other day, she’s being sued for libel, right?” Unless a 1.6(b) exception exists, the attorney cannot say, “Yup, she will have to sell her house and most prized artwork to pay for the settlement.” This information is related to the attorney’s representation of Maria and is therefore confidential under Rule 1.6. But if the attorney were called to testify against her client, her best bet would be to claim attorney client privilege.
Attorney client privilege is not an ethical rule but written into a states’ evidentiary rules. It prevents the attorney from disclosing certain of the client’s communications should the attorney be called as a witness or subpoenaed in a legal proceeding. The privilege protects communications made between a client and their attorney for the purpose of seeking or providing legal advice. Communications include emails, phone calls, etc. If you were to go on a first date with another lawyer, your overshare about family drama is not privileged because presumably your date was not your hired lawyer and those communications were not made for the purpose of seeking legal advice. The conversation would not be confidential either, see discussion above. Attorney-client privilege can also be waived if a third party unrelated to the representation is present for the exchange (watch for exam hypos with a lawyer on speaker phone at a cocktail party or when a client forwards their emails with their attorney to a lawyer friend for the friend’s opinion). The attorney’s paralegals and other support staff do not typically break the privilege. In the example above, the lawyer would not be able to rely on privilege to refuse to disclose Maria’s situation, only confidentiality. The neighbor was not a judge asking the lawyer to testify against Maria, she was just a layperson fishing for gossip.
Can a communication be both confidential and privileged? Of course, most are. Unfortunately for law students, professors do not typically test common, real-life scenarios so you will need to understand the outer bounds of both rules for your exams. Say a criminal defense attorney is representing their client for an armed robbery charge. In their weekly call, the client confesses that she did it. The communication is both confidential and privileged. It is confidential because the lawyer found out this information in relation to her representation of the client and privileged because the client made the communication in relation to seeking legal advice.
Of course, there is much more to this analysis, be sure to check the relevant rules in your jurisdiction!
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