Confidentiality and attorney-client privilege

Confidentiality and attorney-client privilege are two legal rules that protect your privacy when communicating with your attorney.

They are an important part of our legal system. These two rules are similar, and both are intended to encourage you to discuss freely all the facts of your case without fear that information you reveal to your attorney will be shared with others or used against you.

Having all the relevant information about your case helps your attorney to properly advise you.

Confidentiality is an attorney’s ethical duty to keep private any verbal or written communication from a client received in the course of legal representation. It covers not only what the client shares in confidence, but also any information related to the representation, even if that information didn’t come from the client. This information remains confidential when the case is over and even after the client’s death.

The duty of client confidentiality is an ethical rule in every state and is part of the American Bar Association’s Model Rules of Professional Responsibility. A lawyer who violates this duty by improperly revealing confidential information can be subject to disciplinary sanctions.

The attorney-client privilege is a rule of evidence in court proceedings. It protects your right to refuse to disclose confidential communication between you and your attorney and to prevent any other person from disclosing this information. It is one of the oldest rules protecting confidential information, dating back to 16th century England.

Under the attorney-client privilege, a court cannot compel you or your attorney to disclose information you communicated to your attorney when seeking legal advice. This privilege belongs to you. Only you can authorize release of information by waiving your privilege. There are a few instances in which the usual protections of the confidentiality rule and the attorney- client privilege do not apply. If the information you shared with your attorney becomes generally known, it is no longer considered private and is not protected by the confidentiality rule.

If you give your consent, your attorney can reveal information that would normally be kept secret under the confidentiality rule or under the attorney-client privilege.

Your attorney cannot disclose information you reveal about past criminal activity. But if you try to use your lawyer’s services to commit or cover up a serious crime or fraud, the confidentiality rule and your attorney-client privilege will not protect you.

Knowing that communications with your attorney will be kept private helps to build the trust that is necessary for a good attorney-client relationship. If you have any questions about the confidentiality rule or the attorney-client privilege, contact us and let us explain how these apply in your case. They are important protections that you should preserve.