The attorney-client privilege shields from disclosure certain confidential communications between a lawyer and client related to legal advice. The inception of the privilege derives from the premise that adequate legal representation requires full disclosure of information by the client and that this disclosure is more likely to occur if the client’s confidences are protected. Because the privilege is inhibitive to the search for information, its application is a limited one that is narrowly construed. On the other hand, an attorney’s ethical obligation to hold inviolate certain confidential information of the client is broad and applicable to different circumstances. The duty prohibits an attorney from revealing any information relating to the subject representation, absent the client’s consent or a recognized exception delineated in the Rules of Professional Conduct (“RPC”). This article examines the relationship between the attorney-client privilege and the duty to maintain confidentiality, including how the two concepts overlap and how they apply under different circumstances.
The Attorney-Client Privilege
In Upjohn Co. v. United States, the Supreme Court noted that the attorney-client privilege “is the oldest of the privileges for confidential communications known to the common law.” 449 U.S. 383, 389 (1981). Generally, the privilege is recognized to protect from disclosure communications that are made in confidence between an attorney and client in furtherance of providing legal assistance to the client. The scope of the privilege is determined by statute in a given jurisdiction and is often impacted by relevant ethics rules and opinions as they may apply. See, e.g., N.J.S.A. 2A:84A-20 (codifying the attorney-client privilege); 42 Pa.C.S.A. 5928 (same).
As an example of the privilege’s limited application, it does not apply simply because a communication was made by or to an attorney. See Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 630 (D. Nev. 2013) (“merely copying or ‘cc-ing’ legal counsel, in and of itself, is not enough to trigger the attorney-client privilege”). For the privilege to be properly invoked, the communication must be conveyed in confidence for the purpose of legal advice. The privilege also does not apply to protect business and personal advice. See Clause P. Bamberger Int’l, Inc. v. Rohm & Haas Co., Civ. No. 96-cv-1041, 1997 U.S. Dist. LEXIS 22770, at *2 (D.N.J. Aug. 12, 1997) (business and personal advice are not protected by the attorney-client privilege). Finally, the privilege may be forfeited or waived under circumstances where a client voluntarily discloses a privileged communication to a third party. See O’Boyle v. Borough of Longport, 218 N.J. 168 (N.J. 2014) (the attorney-client privilege is ordinarily waived when a confidential communication between an attorney and a client is revealed to a third party).
The Duty of Confidentiality
ABA Model Rule 1.6(a) provides that a lawyer shall not “reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure” is otherwise permitted by this Rule. RPC 1.6 generally defines an attorney’s duty to maintain the confidentiality of information of a client subject to certain exceptions. The rationale behind this principle is explained as follows: “[t]he observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not only facilitates the full development of facts essential to proper representation of the client but also encourages people to seek early legal assistance.” Parler & Wobber v. Miles & Stockbridge, P.C., 359 Md. 671, 688 (Md. App. 2000); see also N.J. Advisory Comm. Op. 116 (Oct. 19, 1967) (observing that if a “client’s confidences are not protected, the client will have a tendency to withhold facts which may be detrimental to his cause.”).
The duty of confidentiality requires not only that an attorney avoid the improper disclosure of protected information, but also that the attorney act in a reasonable and competent manner to preserve the information. In varying degrees, this contributes to trust as the hallmark of the attorney-client relationship. A client is “thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.” Honolulu Civil Beta Inc. v. Dep’t of the AG, 146 Haw. 285, 298 (Haw. 2020).
The Relationship Between Privileged and Confidential Information
Although the attorney-client privilege and duty of confidentiality are closely related, the two concepts are not interchangeable. See N.J. Advisory Comm. Op. 673 (Feb. 7, 1994) (identifying as the basis for the attorney-client privilege and confidentiality principles in RPC 1.6 the promotion of “free and untrammeled flow of information […] between attorney and client.”). The privilege applies only under limited circumstances, whereas the duty of confidentiality is broadly construed to apply at all times.
For example, the fact that a communication does not qualify as “privileged” is not a determination that the same communication is not subject to the protections afforded by the duty of confidentiality. In Spratley v. State Farm Mut. Ins. Co., the Utah Supreme Court observed that the two concepts were not coextensive and that “privilege might be waived allowing compelled disclosure by an attorney while the duty of confidentiality is still in full force.” 78 P.3d 603, 608 n.2 (Utah 2003). On the other hand, a lawyer’s disclosure of confidential information pursuant to one of the exceptions found in RPC 1.6 does not automatically nullify the privileged nature of the communication. See In re A Grand Jury Investigation, 453 Mass. 453, 459 (Mass. 2009) (a lawyer’s disclosure of client’s communications threatening harm to third-party were permitted by exception to RPC 1.6; however, the communications were privileged and the lawyer may not be compelled to testify about them before a grand jury).
The Bottom Line
The attorney-client privilege and duty of confidentiality serve distinct and important functions in the representation of a client. While there is some measure of overlap between the concepts, they are subject to different standards and apply under different circumstances. The next time a document comes across your desk that is marked “Privileged & Confidential,” take a moment to consider whether both labels are appropriate given the context.
Reprinted with permission from the August 21, 2024 edition of The Legal Intelligencer © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or reprints@alm.com.