Concept
Confidentiality Versus Privilege
Professional obligation of confidentiality—general rule
Confidentiality Versus Privilege
A lawyer who holds a client's secret can face two different questions, and two different bodies of law answer them. The first is whether the lawyer may reveal the secret voluntarily. Rule 1.6(a) says no, unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or paragraph (b) permits it.1 The second is whether anyone can force the secret out of the lawyer. That question belongs to the attorney-client privilege, which can be asserted against an official demand for information, such as a subpoena or a deposition question, when the information is a confidential communication between lawyer and client made to obtain legal help.2
Lawyers and courts confuse the two all the time, though they differ in source and in function. The duty of confidentiality comes from the law of agency and the rules of professional conduct, and it limits both disclosure of confidential information and its use against the client's interests. The privilege is part of the law of evidence, and the work-product doctrine is part of procedure; either can block disclosure of evidence that would otherwise be admissible or discoverable.3
The privilege also carries a cost that the duty does not. It protects a client's private information at the expense of the court's truth-seeking process, a balance struck between clients and courts. In the Supreme Court's words, the privilege "is intended to encourage 'full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.'"4
The two protections therefore differ in breadth, in exceptions, and in strength. Confidential material is defined broadly and is subject to several exceptions, and it may carry no immunity from legal process. Privileged information is defined more narrowly and is subject to fewer exceptions, and it does shield against compelled disclosure.5 Put simply, the privilege asks whether a court can compel the information, and the duty asks whether the lawyer may volunteer it.
| Duty of confidentiality | Attorney-client privilege | |
|---|---|---|
| Question answered | May the lawyer reveal or use the information? | Can the information be compelled? |
| Source of law | Agency law and the rules of professional conduct | Law of evidence |
| Reach | Broad: information relating to the representation | Narrow: confidential lawyer-client communications made to obtain legal help |
| Exceptions | Several | Fewer |
| Immunity from legal process | May carry none | Yes |
Because the privilege is narrow, a privilege question starts by testing the information against its elements. The Restatement lists four, and Wigmore's eight-part test is the same in substance.6
Each element has a matching exclusion. The privilege does not reach information learned from non-clients such as witnesses, observations or facts that do not reveal the content of confidential communications, communications not made in confidence, or communications about matters other than the client's legal interests.7 The source requirement matters most in the corporate setting, where the precise identity of the client can be hotly debated: to be privileged, the information must come from the client, not from third parties.8 Each exclusion removes the privilege and leaves the duty in place, because Rule 1.6(a) asks whether information relates to the representation, not who supplied it or how.9
Put the doctrines together and the result is a set of overlapping zones. The privilege lies entirely within the duty of confidentiality: Rule 1.6(a) extends to every privileged communication and to much else besides. Work product overlaps the privilege only in part. Some work product memorializes privileged communications, and some, as when it contains information learned from third parties, does not. Nearly all of it is almost certainly within the duty.10
The duty also operates where no one is demanding anything. In McClure v. Thompson, a lawyer disclosed information because he reasonably believed that children might still be alive. The district court made findings supporting that belief, and the reviewing court concluded that the disclosure fell within the bodily-harm exception to the duty of confidentiality.11 The question was not whether a court could compel the information. It was whether an exception to the duty let the lawyer reveal it.
When a court rejects a privilege claim and orders disclosure, the two bodies of law meet, and the duty yields to the order. Paragraph (b) permits a lawyer to reveal information to comply with other law or a court order.12
The permission does not run the other way. The ethics exceptions and the privilege exceptions are separate lists, and unless an exception to confidentiality lines up with an exception to the privilege, the lawyer's disclosure is limited to non-testimonial revelation for an extra-evidentiary purpose, that is, outside the courtroom and not as evidence.13