The terms ‘attorney-client privilege’ and ‘duty of confidentiality’ can be confused easily by lay people and attorneys alike. While many lawyers knowingly use these terms interchangeably, they are different from each other in many ways and have different implications in legal settings.
If you’ve tried to understand the difference between the two many times but have failed, you’ve come to the right place. Read on to know how the attorney-client privilege differs from the duty of confidentiality.
What Do These Terms Mean?
The Attorney-Client Privilege: The attorney-client privilege protects communications between clients and lawyers from compelled disclosure. This means that a lawyer cannot be compelled in court to reveal information that his client has made known to him (the lawyer) in confidence.
The Duty of Confidentiality: The duty of confidentiality has a wider scope with regards to protected information. While the attorney-client privilege only protects the information a client shares with his lawyer in confidence, the duty of confidentiality covers all information that is brought to light later on even by other sources.
How Is the Client Benefitted?
In general, both concepts encourage a client to trust his lawyer. The attorney-client privilege in particular, serves to reassure a client that whatever he tells his lawyer is in strict confidence.
By telling everything truthfully to the lawyer, clients benefit from receiving appropriate and sound advice from their lawyers. Furthermore, full disclosure can help a lawyer counsel the client as required so that he can stay within the limits of the law.
What Are the Requirements?
The requirements for the attorney-client privilege may vary across states and countries. However, in general, the concept requires that:
The person asserting the attorney-client privilege should be a client or a potential client of the attorney
The person to whom the confidential information was disclosed be a certified attorney
Information disclosed should be only for gaining legal opinion and not for committing criminal acts.
Note that the attorney-client privilege does not apply if an attorney also acts as a business advisor or is a board member of concerned company.
The duty of confidentiality requires a lawyer to keep any information that comes from the client or from other sources confidential even during informal conversations with others.
What If the Client Shares Confidential Information with Others?
The client is the only person who can waive the attorney-client privilege. If a client shares confidential information willingly with someone other than his lawyer, this would waive protection under the attorney-client privilege, but not under the duty of confidentiality.
What Can Clients Expect from Attorneys?
A client can expect reasonable secrecy from his attorney when confidential information is disclosed in private. If someone were to record such a conversation, the recording would be inadmissible in court.
Remember that when confidential information is discussed in public and a third person overhears the conversation, he/she cannot be prevented from testifying about it in court.
Additionally, as mentioned, even if a client shares confidential information with people other than his lawyer, the lawyer remains obligated to refrain from sharing the same with others.
Both the attorney-client privilege and the duty of confidentiality encourage frank discussion between a client and his attorney. While these concepts may hinder facts from surfacing, the cost is reasonable considering the overall benefit.
Jeff Tomczak is an experienced personal injury attorney in Joliet, IL. at The Tomczak Law Group. As the founder of the firm and a lawyer by profession, he has years of experience in handling the most serious and high-profile personal injury, accident and criminal cases since the last 25 years. He is dedicated in his work of representing victims and strives for availing significant compensation for his clients.