A Refresher on Confidentiality and Attorney-Client Privilege in Client Communications
I was recently approached by a friend who needed some legal assistance. As we were discussing her matter, she pointedly asked, “So, this is all confidential, right?” I reassured that the conversation was in fact confidential. As attorneys, we have an obligation to preserve the confidentiality of our clients’ communications. We are also aware of the existence of the attorney-client privilege but may not fully understand how it differs from confidentiality. Let’s revisit these concepts to ensure ongoing compliance with all of our obligations.
First, a distinction worth noting: The duty of confidentiality is an ethical concept, while the attorney-client privilege is an evidence concept.
The duty of confidentiality is outlined in the North Carolina Rules of Professional Conduct (RPC). Rule 1.6(a) holds that a lawyer “shall not reveal information acquired during the professional relationship with the 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).” Thus, the general rule is that a lawyer may not reveal information acquired during representation, absent the client’s informed consent.
Paragraph (b) outlines eight reasons why a lawyer may reveal confidential information, to the extent that the lawyer believes it to be necessary. These reasons are (1) to comply with the RPCs, the law or a court order; (2) to prevent the commission of a crime by the client; (3) to prevent reasonably certain death or bodily harm; (4) to prevent, mitigate or rectify the consequences of a criminal or fraudulent act in which the lawyer’s services were used; (5) to secure legal advice about compliance with the RPCs; (6) to establish a claim or defense or to respond to allegations when a controversy arises between the lawyer and client; (7) to comply with the rules of a lawyers’ or judges’ assistance program; and (8) to detect and resolve conflicts of interest that may arise when a lawyer changes employment or firms, but only if the information would not compromise the attorney-client privilege or otherwise prejudice the client.
Paragraph (c) states that lawyers shall make “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” This paragraph is particularly poignant because you may have sensitive client information on your laptop or mobile phone. Your duty is to “competently safeguard” this information and make reasonable efforts to prevent access or disclosure of confidential information.
There are some instances where confidentiality can inadvertently be waived. Katz v. U.S., a Supreme Court case from 1967, holds that attorney-client communications are confidential only if they are made where there is a reasonable expectation of privacy. Perhaps think twice about meeting with a client at a coffee shop or restaurant, where others could overhear your conversation.
In contrast to confidentiality, the attorney-client privilege is an evidence concept that is creature of common law in North Carolina. Rules 501 and 502 of the Federal Rules of Evidence discuss privilege and, more specifically, attorney-client privilege. Generally, a privilege exists if (1) the relation of attorney and client existed at the time the communication was made, (2) the communication was made in confidence, (3) the communication relates to the matter about which the attorney is being professionally consulted, (4) the communication was made in the course of giving or seeking legal advice for a proper purpose although litigation need not be contemplated, and (5) the client has not waived the privilege. See State v. McIntosh, 336 N.C. 517, 444 S.E.2d 438 (1994). The privilege is absolute as it relates to attorney-client communications.
These concepts are similar in that both prohibit the disclosure of certain client information. The duty of confidentiality prevents disclosure of client information relating to representation, subject to the exceptions outline in RPC 1.6(b). The attorney-client privilege, however, protects only confidential client communications within the scope of representation. Information about representation that is not a confidential communication, as contemplated by McIntosh, may not be privileged and could be compelled. While these rules have some overlapping concepts, a quick refresher on the distinctions between the two and your obligations under both will ensure that you are protecting your clients’ confidentiality.
Jared Pierce hung his own shingle right out of law school and has spent every minute since then discovering the joys and difficulties of chasing success.