December 20, 2017

Confidentiality, Privilege or Both?

Elissa Spencer

Few of your duties will seem more straightforward and, upon deeper inspection, be more confusing than the interplay between the lawyer’s duty of confidentiality and the attorney-client privilege. Indeed, when it comes to your day-to-day work as an attorney, there is a substantial amount of overlap between confidentiality and privilege, but they are different. The best way to think about the difference between the two is to remember that confidentiality is an ethical duty you, as the lawyer, owe your client, and you can be disciplined for violating it. The attorney-client privilege, on the other hand, is governed by an evidentiary rule protecting your communications with your client from disclosure during litigation or another proceeding. It is owned by the client, can be waived by the client, and if waived, can negatively affect your client in that proceeding or others.

Confidentiality

To better understand what’s required of you as a lawyer, let’s start by looking closer at the duty of confidentiality, which is governed by your state bar’s rules of professional conduct. For our purposes, we’ll look at the ABA Model Rule 1.6, which states:

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).

The rule prohibits a lawyer from sharing any information learned about their client–whether learned directly from the client or not–that is related to the representation without permission from the client. This is a broad duty. However, paragraph (b) of the rule lays out a number of instances where disclosure is permitted without a client’s consent, including preventing death or substantial bodily harm, preventing the client from committing a crime or fraud that will injure another, preventing or mitigating harm that may result from a crime committed by the client, compliance with other law or a court order, securing legal advice about compliance with the rule, establishing claims and defenses in the event of a dispute between the lawyer and the client, or resolving potential conflicts of interest for the lawyer. Given these numerous exceptions, a lawyer must pay close attention to the particular facts of their situation when determining whether disclosure is permitted.

Clients, as well as lawyers, often conflate the confidential sharing of information with the attorney-client privilege. They may think that because a fact is shared with a lawyer, it is protected from any and all disclosure. This is fundamentally false. You, as an attorney, can’t share what you’ve learned about your client in the scope of the representation, but if the information is otherwise validly requested—through a discovery request, for example—those underlying facts must be disclosed unless covered by a privilege.

Attorney-Client Privilege

While the nitty-gritty details and application of the attorney-client privilege vary from state to state (and even court to court), generally, the privilege requires (1) a confidential communication; (2) between a lawyer and their client; (3) made for the purpose of seeking, obtaining, or providing legal advice.

As you likely noted, confidentiality is the first requirement for privilege to apply. Thus, the two go hand-in-hand—without confidentiality, there can be no privilege. But it isn’t just the lawyer’s ability to keep information confidential that matters here—the client themselves must also keep the communication confidential. The more that information and advice is disseminated, the less likely it is to be protected.

And, if it isn’t protected, you face the possibility of subject matter waiver: not just the exposed communication, but every protected communication on the same subject matter will be deemed subject to discovery. Thus, beyond your ethical duty, this very serious consequence is an important reason for keeping your legal advice and the related communications confidential.

Additionally, not just any communication between a lawyer and their client is protected. The primary purpose of the communication must be legal advice. This becomes especially tricky for in-house counsel, who often wear two hats, advising on both business matters and legal issues. In-house counsel’s business advice is not protected by the privilege (although, of course, in-house counsel are required to keep such advice confidential).

Finally, while the communication itself is protected, the facts underlying the communication are not. The client can be asked to testify as to those facts, or share other, non-privileged documents containing those facts. The fact that this information was transmitted to an attorney for the purpose of legal advice, however, would be covered by privilege.

Work Product Doctrine

One final note: the other “privilege” that will pop up early and often in your legal career is the work-product doctrine. The work-product doctrine protects material created by or for an attorney for the purposes of litigation. This can include, for example, data that you ask your client to pull for you for the purposes of advancing your defense in litigation. Importantly, this is a doctrine, not a privilege—it can be overcome by a showing of substantial need from the opposing side. Thus, the best advice here is to tread carefully: don’t avoid creation of materials because of the potential of disclosure, but be aware that this risk is always present.

There are numerous other nuances to the attorney-client privilege that you will encounter throughout your legal career. But as comment 2 to Model Rule 1.6 notes, “trust that is the hallmark of the client-lawyer relationship.” It is this trust that is the reason for the existence of both the duty of confidentiality and the attorney-client privilege, for without such trust, the open sharing of information that allows the attorney to do their job would be absent. Maintaining your client’s confidentiality is the best practice to protect both your client and your own ethical obligations.

Elissa Spencer

Elissa Spencer works as Legal Counsel at Whirlpool Corporation in Benton Harbor, Michigan.