Attorney-client privilege and attorney-client confidentiality are vital to the relationship that exists between a lawyer and his or her client. Without protections surrounding privilege and confidentiality, attorneys would have an extremely difficult time creating open and trustworthy communications with their clients, which, in turn, would make it difficult for clients to be well represented in legal matters. However, attorney-client privilege and attorney-client confidentiality are two-term that often get confused with one another–even, sometimes, by attorneys themselves! While these two concepts overlap in many ways, they are also different from one another in some very important aspects.
How are they the same?
Attorney-client privilege and attorney-client confidentiality often get confused for one another because in many cases they serve the same purpose, which is to protect the confidentiality of the information and/or communication that is shared between an:
- His or her client
These two concepts are vital for allowing clients to feel as though they can be open and honest with their attorneys without fear of reprisal or self-incrimination. Without such safeguards, clients would likely feel compelled to withhold vital information out of fear that such information could result in undesirable consequences. Privilege and confidentiality, therefore, allow attorneys to provide better legal representation since these safeguards ensure that the attorney is in possession of more information about his or her client’s case.
What’s the difference?
The main difference between attorney-client privilege and attorney-client confidentiality is that the former is an evidentiary principle while the latter is an ethical principle. The difference between an evidentiary and an ethical principle matters in a number of ways. First, attorney-client privilege tends to be much narrower in scope compared with attorney-client confidentiality. While attorney-client privilege differs by state, in general, it refers only to communication between an attorney and his or her client. In many cases, attorney-client privilege only protects such communication if that communication pertains to the litigation at hand and it also does not protect communication that is available from a third-party source. Additionally, there may be a number of instances where attorney-client communication is exempt from privilege protections.
In contrast, attorney-client confidentiality tends to be much broader in scope. Confidentiality requires the attorney to not only not reveal information that has been shared with him or her by the client but also prevents that attorney from using such confidential information in a way that may be disadvantageous to the client. Furthermore, the duty of confidentiality pertains to most information that may be used against the client, whether or not that information was revealed by the client or by a third party. For example, if an attorney receives information from a client’s friend that could harm the client’s case then attorney-client confidentiality would still forbid that attorney from using that information against his or her client. Again some information may be exempt from attorney-client confidentiality protections.
Attorney-client privilege and confidentiality are such overlapping concepts that it is easy to confuse one with the other. However, as shown above, there are some very significant differences between these two principles and these differences can have an important impact on how an attorney chooses to advance his or her client’s case.