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.

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