By Chesley Payne
Most people understand that an attorney’s most valued role is to keep the thoughts and statements of his clients protected from disclosure. However, this “duty of confidentiality” is often mistaken for a similar concept called “attorney-client privilege.” The duty of confidentiality is the duty an attorney has to not disclose the client’s information without the informed consent of the client. This duty can extend to after the death of the client.
Attorney-client privilege is the right of an attorney to not be forced to testify as to the attorney’s dealings with the client during the course of the attorney’s representation. To put it simply, the duty of confidentiality deals with keeping the client’s information free from disclosure to anyone else. Attorney-client privilege means an attorney cannot be called to testify as to the attorney’s dealings with the client in court.
In most situations, the duty of confidentiality can be counted on to protect the client’s information. Certain limited situations, like a court ordering the disclosure, can cause the attorney to disclose this information.
Generally, most courts will first make a determination whether the information can be discovered from another source or whether it was directly related to the attorney’s representation in the pending matter before the court. If the answer to either of these questions is yes, the court will generally decline to force the attorney to release this information. Attorneys can disclose information if the attorney feels the client is using his services to perpetuate a crime or if the attorney determines that doing so will avoid death or serious bodily injury.
However, in most situations, the attorney’s first rule is to protect their client and, in turn, the confidentiality of the client’s information. In this era of information theft, people should be comforted by the fact that nothing short of a court order issued after a strenuous review of the request will allow confidential information to be released by their attorney.