Confidentiality Is Wider Than Privilege
Two different protections are routinely spoken of as one. The ethical duty governs what a lawyer may say; the evidentiary privilege governs what a lawyer can be made to say. They have different sources, different scope, and different ways of being lost.
The rule in short
The duty of confidentiality bars a lawyer from revealing information relating to the representation of a client, whatever its source, unless the client gives informed consent, disclosure is impliedly authorized, or an exception applies. The attorney-client privilege is a rule of evidence protecting confidential communications made for the purpose of obtaining legal advice, and it operates only to resist compelled disclosure. The ethical duty is broader in scope and narrower in force.
Two protections stand between a client's information and the outside world, and they are constantly confused with each other. One comes from the rules of professional conduct and governs what a lawyer may choose to say. The other comes from the law of evidence and governs what a lawyer can be forced to say. Neither is a subset of the other in any simple sense.
What the ethical duty covers
The conduct rule is drafted at its widest point. 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 a specific exception applies. Three phrases carry the breadth: relating to, which sweeps in more than communications; information, which is not confined to documents or statements; and reveal, which covers any disclosure however casual.
Nothing in the formulation asks where the information came from. A fact the lawyer learned from an adverse party, from a public filing, or by looking at the client's premises is within the duty if it relates to the matter. Nothing asks whether the client marked it confidential. And nothing asks whether the disclosure would harm the client, though harm bears on the seriousness of a breach.
The implied authorization route is what makes practice possible. A lawyer negotiating a settlement discloses the client's position, a lawyer filing a complaint discloses the client's account of events, and a lawyer consulting a colleague about a problem discloses enough for the question to be answered. These are authorized because the representation cannot be carried out otherwise, within the limits the client sets.
What the privilege covers
The attorney-client privilege is narrower and harder-edged. It protects a communication, made in confidence, between a lawyer and a client, for the purpose of obtaining or providing legal advice. Each element is a requirement, and each has generated a substantial body of decisions about its boundaries.
The most consequential limit is that the privilege protects the communication rather than the underlying facts. A client who tells a lawyer what happened cannot be excused from answering what happened; the client can decline to say what was told to the lawyer. Documents that existed before the representation do not acquire protection by being placed in counsel's file. And communications made for a business purpose rather than a legal one fall outside, which is the recurring fight in corporate practice where in-house counsel wear both roles.
A lawyer who reasons that information is not privileged, and therefore may be discussed, has skipped the question that governs. The ethical duty applies to information that no court would ever protect from discovery. The order of analysis is: may the lawyer speak at all under the conduct rules, and only then, can the lawyer be compelled to speak under the law of evidence.
| Question | Duty of confidentiality | Attorney-client privilege |
|---|---|---|
| Source of the rule | The conduct rules of each licensing state | The law of evidence in the forum, common law or statutory |
| What it covers | All information relating to the representation, whatever its source | Confidential communications made for the purpose of legal advice |
| When it operates | Always, in every setting, including private conversation | When disclosure is being compelled by a tribunal or in discovery |
| Effect of disclosure to a third person | The duty continues to bind the lawyer | Confidentiality is broken and the privilege is generally waived |
| Consequence of breach | Professional discipline, and potential civil liability | Compelled testimony or production of the material |
How each one is lost
The privilege is fragile in a specific way: it depends on confidentiality having been maintained, so voluntary disclosure to someone outside the relationship generally waives it, and waiver as to one communication can extend to related communications on the same subject. Federal evidence law limits the reach of that extension and provides that an inadvertent disclosure does not operate as a waiver where reasonable steps were taken to prevent and to correct it. State rules on inadvertent disclosure vary.
The ethical duty is not lost by the client's carelessness. If a client posts the substance of a matter online, the lawyer's obligation is unchanged, because the duty is owed by the lawyer and released only by informed consent or by an exception. That asymmetry surprises lawyers who assume the two protections rise and fall together, and it is why responding publicly to a client's online criticism has produced discipline in more than one state.
Work product as a third layer
A third protection covers material prepared in anticipation of litigation by or for a party or its representative. It is qualified rather than absolute: an opponent may obtain ordinary work product on a showing of substantial need and inability to obtain the substantial equivalent without undue hardship, while a lawyer's mental impressions, conclusions, opinions and legal theories receive stronger protection.
Work product belongs to a different family from the privilege. It attaches to material rather than to communications, it survives some disclosures that would waive the privilege, and it protects the adversary system rather than the confidential relationship. In practice, a document may be work product without being privileged, privileged without being work product, or both, and a privilege log has to say which.
Where the distinction decides an outcome
Three settings show the difference doing real work. Joint representation removes confidentiality between the clients while leaving both protections intact against the outside world, which is why consent to a concurrent conflict must explain the information consequences before the arrangement begins. Entity representation raises the question of who may waive, since the privilege belongs to the organization and not to the officer who spoke.
Third, a lawyer facing a demand to disclose has to determine whether an exception permits it, which is a different question from whether a court can compel it. The permissive and mandatory grounds are set out in the exceptions that allow a lawyer to reveal information, and one of them expressly covers compliance with other law or a court order. Where the duty continues but the relationship cannot, the exit itself must be handled without revealing more than the rules allow, a constraint that shapes how a lawyer states the grounds for withdrawal to a court.
Points to carry away
- The ethical duty covers all information relating to the representation, not only what the client said.
- The privilege protects communications made in confidence for the purpose of obtaining or giving legal advice.
- Confidentiality binds the lawyer everywhere; the privilege operates when disclosure is being compelled.
- The privilege can be waived by disclosure to a third person, while the ethical duty may still bar the lawyer from speaking.
- The work product doctrine is a third protection, covering material prepared in anticipation of litigation.
- Privilege law is set by the law of evidence in each forum, while the ethical duty is set by each state's conduct rules.
Questions readers ask
Does the protection cover what a lawyer learned from someone other than the client?
The ethical duty does. It reaches information relating to the representation whatever its source, so a fact the lawyer read in a public filing, heard from an investigator, or observed personally is covered if it relates to the matter. The privilege does not: it protects the confidential communication between lawyer and client, not the underlying facts, and a client cannot make a document privileged by handing it to counsel. A witness can always be asked what happened; the question is whether counsel can be asked what the client said about it.
Can a lawyer discuss a matter that is already in the newspapers?
Not freely. The ethical duty applies even to information that is generally known, and the model rule's exception permitting use of generally known information is limited to former clients and to use rather than disclosure. A lawyer confirming a publicly reported fact about a current client's matter is still revealing information relating to the representation. Disclosure may be impliedly authorized where it is necessary to carry out the representation, and a client can consent, but public availability is not on its own a permission.
How long does each protection last?
Both survive the end of the representation, and the privilege has been held to survive the client's death, which prevents a lawyer's testimony about a deceased client's confidences from being compelled in the ordinary case. The ethical duty likewise continues after the relationship ends and after the client dies, with the narrow qualification that information which has become generally known may be used to the disadvantage of a former client. Neither protection has a fixed term measured in years.
Sources
- ABA Model Rules of Professional Conduct — Rule 1.6, Confidentiality of InformationThe ethical duty, its consent and implied authorization routes, and the exceptions.
- ABA Model Rules — Comment on Rule 1.6States expressly that the ethical duty is broader than the evidentiary privilege and work product.
- United States Courts — Federal Rules of EvidenceThe evidentiary framework, including the rule limiting the effect of disclosure on privilege and work product.
- United States Courts — Federal Rules of Civil ProcedureThe discovery rules that codify work product protection and require a privilege log.
- ABA Model Rules — Rule 1.9, Duties to Former ClientsCarries the confidentiality duty forward after a representation ends and defines the generally known limit.
- ABA Model Rules — Rule 1.13, Organization as ClientIdentifies the client where the privilege belongs to an entity rather than to the people who speak for it.
Justice Partners Journal is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
