Privilege Versus Confidentiality Duty

A lawyer who learns something about a client's matter faces two distinct questions, and the law answers each with its own rule. One asks whether someone can compel the lawyer to hand the information over. The other asks what the lawyer may do with it when no one is demanding anything. The two are often confused.¹

The first question belongs to evidence law. Under Rule 501, the common law, as United States courts interpret it in light of reason and experience, governs a claim of privilege unless the Constitution, a federal statute, or a Supreme Court rule provides otherwise, and in a civil case state law governs privilege for a claim or defense on which state law supplies the rule of decision.² Rule 502(g)(1) defines the attorney-client privilege as the protection that applicable law provides for confidential attorney-client communications.³ The second question belongs to professional ethics. Law, medicine, and other professions have codes that bind their members to protect what clients and patients disclose, whether or not privilege law covers the same material.⁴

The privilege operates on compulsion. Privileges are more than rules of admissibility: they govern whether disclosure can be compelled before trial, and the setting in which they most often arise is an objection to a grand jury subpoena or to a discovery request.⁵ The duty operates on the lawyer's own conduct. A lawyer is generally obliged to protect all information relating to the representation and not to disclose it voluntarily.⁶ The older Code of Professional Responsibility added a limit on use: a lawyer should not use information acquired in the representation to the client's disadvantage, or for the lawyer's own purposes without the client's consent after full disclosure.⁷

The consequences of breach differ as sharply as the questions do. A lawyer who violates the duty risks professional censure and possible suspension or loss of license.⁸ The violation does not by itself keep the information out of court, however, because a disclosure that breaks a professional code is barred from evidentiary use only if it also falls within a privilege.⁹

The two protections nest like one circle drawn inside another. The duty is the larger circle. The privilege, which attaches to a special subset of confidential information consisting of communications between lawyer and client, is the smaller one, so everything the privilege protects is also information the lawyer must not volunteer.¹⁰ The reverse does not hold. The Code's commentary says the privilege is more limited than the ethical obligation, which exists "without regard to the nature or source of information or the fact that others share the knowledge."¹¹ The ring between the circles therefore holds information from three common sources: facts a third party supplied, a client's words spoken where outsiders could hear, and what the lawyer observed without the client's saying anything.

The circles differ in size because each guards against a different harm. The duty rests on the fiduciary relationship between lawyer and client and on the proper functioning of the legal system, which together call for the lawyer to preserve the confidences and secrets of anyone who has employed or sought to employ the lawyer.¹² Because the duty regulates the lawyer's conduct, it must follow the information wherever the lawyer found it. A lawyer free to pass along what witnesses said about the matter, or to use it for personal ends, could injure the client even though the client confided none of it. The privilege is narrower because the immunity from legal process attaches only to communications between lawyer and client, so a fact the lawyer collected from someone else does not fall within it.¹³

Information inside both circles shows the two doctrines working together. When a subpoena demands the lawyer's testimony about what the client confidentially said, the duty already forbids voluntary disclosure. The lawyer should not be forced to divulge the substance of a privileged communication and must take appropriate steps to assert and competently advance the privilege.¹⁴ The doctrines can also part ways inside the inner circle. A client's revelation of an intent to commit a future crime does not by itself remove the privilege, assuming the communication does not itself exploit the representation to advance the criminal intent. Rule 1.6 of the Model Rules or a state ethics rule may nonetheless give the lawyer discretion, or even impose a requirement, to disclose the client's intent to harm another person. Even then, the persistence of the privilege keeps the lawyer from being called to testify against the client about that communication.¹⁵

The harder questions concern information that sits in the outer ring alone, and two situations show how it gets there.

The bystander's account stays in the outer ring because it never passed between lawyer and client, and a lawful subpoena or court order seeking information outside a recognized privilege must be answered.¹⁶ A failure of confidentiality produces the same split from a different direction.

The duty does not depend on who overhears: a client's communication made in front of an outsider may be unprivileged, yet the lawyer remains ethically obliged not to discuss the matter.¹⁷ In the lawyer's closed office, the same words would probably sit inside both circles. The lawyer's own observations fall into the same gap. What the lawyer sees while walking through a building during an investigation relates to the representation and is covered by the duty whatever its source, but it is not a communication from the client and so lies outside the privilege.¹⁸

When a demand reaches information that the duty covers and the privilege does not, the duty yields to the court. A lawyer must respond to a lawful subpoena or court order seeking information outside a legally recognized privilege.¹⁹ The professional codes accommodate that result by generally allowing disclosure that law or a court order requires, and Model Rule 1.6(b)(6) is an example.²⁰ The accommodation fits the duty's design, since the duty restrains voluntary disclosure and testimony compelled by a court is not voluntary. It also explains why practitioners take care not to promise confidentiality in court proceedings beyond what privilege law covers. Without a privilege, a professional called as a witness may have to disclose a client's confidential communications regardless of ethical standards or assurances given, and one who holds out beyond the privilege risks being held in contempt of court.²¹

Exam Analysis Steps

Because the two doctrines answer separate questions, sort a problem by asking each question in turn.

Ask whether the information relates to the representation. If it does, the duty covers it whatever its source, and the lawyer may not volunteer it or use it against the client.
Ask whether anyone is demanding the information, by subpoena, deposition question, or discovery request. If no one is, the problem is one of duty, and the privilege has nothing to resist.
If someone is, ask whether the information meets the privilege's elements, above all that it be a confidential communication between lawyer and client. If it does, the lawyer asserts the privilege and refuses to disclose the substance.
If it does not, because it came from a third party, was spoken in front of outsiders, or is the lawyer's own observation, the privilege is unavailable, and a lawful order may require the lawyer to testify despite the duty.

Privilege Versus Confidentiality Duty

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