The concepts of attorney confidentiality and attorney-client privilege refer to information that the lawyer must keep private and protect the client's ability to freely trust his lawyer, but the concepts are not synonymous. Attorney-client privilege is, strictly speaking, a test rule. It prevents lawyers from testifying and being forced to testify on their clients' statements. Regardless of that privilege, lawyers also owe their clients a duty of confidentiality.
The duty of confidentiality prevents lawyers from even informally discussing information related to their clients' cases with others. In general, they must keep almost all information related to customer representation private, even if that information does not come from the customer. The duty of confidentiality is much broader than the attorney-client privilege. As explained above, the duty of confidentiality applies to ALL information the lawyer has about the client; it is not limited to conversations between the lawyer and the client.
In addition, the duty of confidentiality applies to all environments, not just environments where test rules apply. Attorney-client privilege refers to a legal privilege that works to keep confidential communications between a lawyer and his client private. Communications made to and by a lawyer in the presence of a third party may not be entitled to this privilege because they are not confidential. It is essential to understand the difference between attorney-client privilege and attorney-client confidentiality.
Both concepts help protect the interests of our customers and are intended to foster honest and open communication between us and our customers. Even so, they serve VERY different purposes. The difference? In short, attorney-client privilege comes from the rules of EVIDENCE, while confidentiality comes from the rules of ETHICS. Although attorney-client privilege, like the fiduciary duty of confidentiality, is rooted in common law, today attorney-client privilege is generally governed by state law, and there are few exceptions and they are also generally legal.
The privilege generally remains in effect even after the attorney-client relationship ends, and even after the client's death. The attorney-client privilege is waived when the client sues his lawyer; the lawyer can defend himself by disclosing attorney-client privileged information. Because attorney-client confidentiality and attorney-client privilege have the ultimate goal of protecting client information, there are some similarities between the two regarding how information can be disclosed and when it can be disclosed. The information provided on this site does not constitute legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship will be formed or formed through the use of the site.
Such communications are privileged only if the overriding purpose is to promote the objectives of the attorney-client relationship. A communication is protected by the privilege only if it is intended to be confidential, that is, if it is made with the expectation that it will not be disclosed outside the attorney-client relationship.
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