In the age of social media such as Twitter and Facebook you have doubtlessly seen countless people sharing stories from their jobs. From funny anecdotes to heartwarming stories of kindness, it seems like everyone is talking about what happens to them at work. While it’s great fun to see what happens in other lines of work, some professionals, such as lawyers, need to be careful about what they share about their work and to who. There is a world of difference, after all, between the details that can be shared by a cashier and those that could be disclosed by a lawyer.
Which begs the question, “Can lawyers talk about their cases?”
The short answer is no. Because once lawyers and their clients begin working together there are rules lawyers must abide by specifically attorney-client privilege and the duty of confidentiality. Under attorney-client privilege, lawyers are not allowed to divulge the details of anything their clients tell them in a court of law. In addition to that, The Duty of Confidentiality protects clients from having their lawyers casually discuss the private details of their case outside of court.
There’s a lot more to know about both of these rules and their importance and limitations for both lawyers and clients than you might realize though.
Why Does Attorney-Client Privilege Exist?
When someone hires a lawyer it is imperative that they can trust their lawyer. The client has to be able to tell the lawyer everything they need to know, and sometimes this includes unsavory or incriminating details that could jeopardize their case. Naturally just as the lawyer needs to know these details so they can best represent their client, the client needs to be assured that those details will not be forced out and heard before the court.
This is where attorney-client privilege comes in, under this rule the lawyer cannot be forced to reveal details of the communications between them and their clients. This applies not only to oral communication but also to written communication, both manual and digital. It is notable that attorney-client privilege only applies within the courts themselves, preventing an attorney from testifying about what their clients have told them. It also stops lawyers from divulging those details to anyone outside of the client’s legal team such as a rival attorney, jury member, or even judge.
Thanks to the protection of attorney-client privilege, clients can feel safe in trusting their lawyers, and it gives them a route to seek justice if that confidence is ever broken.
What is the Importance of the Duty of Confidence when Attorney-Client Privilege Already Exists?
Whereas attorney-client privilege protects clients from having their secrets exposed in court, the duty of confidence protects them from informal divulsion. Informal divulsion would be if the lawyer told sensitive and private details of the case to someone who is not involved in the case in any way. This includes people like the lawyer’s family and friends, coworkers who aren’t on the client’s legal team, and literally everyone that the client doesn’t give formal consent to being told. This gives much broader protection for the client’s information than attorney-client privilege provides.
Because of the broader scope, the protection a client gets from the duty of confidence is just as important as the protections from attorney-client privilege. While attorney-client privilege can keep a client from being incarcerated, the duty of confidence protects a client from having the rest of their life complicated or even potentially ruined by information leaking to the public. Such as by losing their job, being evicted, or other social consequences. This is why it is incredibly important for a lawyer to abide by the duty of confidence just as strictly as they do to attorney-client privilege.
What are the Consequences when an Attorney Breaks Confidence
There are two sets of consequences that happen when a lawyer breaks either attorney-client privilege or the duty of confidence. One is to the client who had their trust broken and their communications leaked. These consequences can range from simple embarrassment if humiliating information is leaked, to legal consequences that can ruin a client’s life. Though there are some protections under the law for a client who has had their confidence broken, there is no guarantee they will escape unscathed.
Because of the potential for severe harm to the client, there are also a myriad of consequences for the lawyer, which incentivizes them to maintain both attorney-client privilege and the duty of confidence. From the hit to their reputation that a breach of confidence can bring – after all would you wanna hire a lawyer who couldn’t maintain confidence? – to legal consequences such as disbarment or suspension of their law license. Lawyers who break attorney-client privilege or the duty of confidence can also open themselves up to the possibility of being sued civilly by their former client.
However it is impossible to say what exactly will happen in any one case. Each one will be different and due to factors such as exactly how confidence was broken and what information was leaked. In the United States, where it happened will also decide what consequences there are when attorney-client privilege is broken, as each state has its own laws and procedures for handling such cases.
What are the Limitations of AttorneyClient Privilege and the Duty of Confidence
Attorney-client privilege and the duty of confidence together give clients a wide range of protections when discussing their cases with a lawyer. It even protects them after their case is over, as these protections do not typically expire. Lawyers are even expected to keep confidence after a client has died in most cases.
It’s easy then to assume that there are absolutely no limitations to these protections, that there is absolutely no way that attorney-client privilege or the duty of confidence can be forfeit or have an exemption as to their coverage. This is not true, however, there are a number of ways that attorney-client privilege and the duty of confidence can be circumvented both by accident and through legal exemption.
Attorney-client privilege, it is important to note, only applies between a client and their lawyers when a client – or potential client, such as someone reaching out to seriously discuss being represented by an attorney even if they are not yet currently a client of said attorney and even if they end up never being a client – is communicating with a lawyer who is explicitly acting in a professional capacity.
So a lawyer giving some friendly advice to one of their friends is not bound by attorney-client privilege nor by the duty of confidentiality. Also important for attorney-client privilege to be invoked is that the client begins with the intention that their communications will be confidentially and does not jeopardize that confidentially.
Confidentiality is jeopardized when the client does not prioritize their privacy with their lawyer. Because attorney-client privilege and by extension, the duty of confidentiality does not apply to people who are not the client’s lawyers. So if for example, the client does such things as discusses the details of their case in public someone who overheard them is perfectly able to testify as to what they heard. However, if privacy is maintained, and the lawyer and client only speak when alone or with other members of the legal team present and something like a recording is taken in secret by a third party, that recording would not be allowed to be used in a court of law.
This need for privacy extends beyond just keeping discussions in a private space, as a client can waive and/or end up forfeiting their right to confidentially by inviting someone who is not a part of their legal team into their discussions. Because even though that third party was invited into the discussion their place as being outside of the client’s legal team means they are not required to keep confidentiality. It is only the client however who can waive or forfeit their rights to confidentiality through attorney-client privilege, not the lawyer.
Beyond accidental breaches in the confidentiality between a client and a lawyer, there are a few situations in which attorney-client privilege and the duty of confidentiality do not apply, even when the communication is completely private and only involving the lawyer and client.
One such circumstance is if the client contacts their lawyer and admits to the intent to commit a crime. Whereas past crimes that the client admits to in the course of talking with their lawyer are covered by attorney-client privilege and the duty of confidentiality attorney-client privilege cannot be invoked to cover up a future crime. For example, if a client calls their lawyer and says that they are going to harm someone, or commit fraud, the lawyer is not bound by attorney-client privilege to just let that happen. Many states allow for lawyers to turn in their own clients under these circumstances and a few require them to do so.
In such cases, the lawyers are often allowed to testify against their client or have statements they make about the situation be admissible in a court of law.
A client may also at any time waive their right to attorney-client privilege by consenting to have their communications with their lawyer presented as evidence in their case.
Conclusion
When it comes to the confidentiality of information shared between a client and their lawyer, there is more to keep in mind than just the existence of attorney-client privilege and the duty of confidentiality. There is a responsibility for both parties to make sure that confidentiality is maintained, and it is imperative that both clients and lawyers fully understand the consequences that can arise if confidentiality is broken. Because attorney-client privilege and the duty of confidentiality are essential for lawyers to do their jobs and for clients to trust in their lawyers, and without it, the legal system would be completely unrecognizable.
