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Confidentiality And The Attorney- Client Privilege Explained

At the heart of the current attorney-client partnership is client confidentiality. It is very important for you to feel a sense of confidence and trust in your legal counsel if your lawyer is to serve you effectively. A variety of sensitive and private matters may be part of your legal issue. Understand that when it comes to keeping the details private, both lawyers are kept to very strict standards.

As a defendant, as much detail as appropriate to advance the cause of your case is required to be shared with your counsel. However, as a consumer, you are therefore entitled to consider what your obligations are with respect to confidentiality requirements. What follows is an overview of the different levels of confidentiality that all lawyers are held to.

What are the privacy requirements to which my counsel is bound?

To begin with, when it comes to keeping your personal information private, you should understand that there are two clear principles that lawyers must adhere to. The first is considered the Obligation of Confidentiality of the prosecutor, while the second is called the Right of the Attorney-Client. Each one of these will be discussed below in detail.

What is the Confidentiality Responsibility of the Lawyer?

To put it simply, the Obligation of Confidentiality states that without your permission, your lawyer will not disclose anything connected with your legal representation. Thus, it is forbidden for your counsel to disclose any matter that could be relevant to the legal argument you have engaged them for.

This is a very broad requirement that applies, not only sensitive communications or communications that were supposed to be confidential, to all matters relevant to your argument. For example, if you hired a lawyer for a divorce claim and told them information about a prior divorce, they could not reveal this information to other people because it could be relevant to your claim.

What are some additional features of the confidentiality duty?

With respect to the obligation of confidentiality, the source of the information does not matter. If your lawyer has obtained information about you from a person other than you, if it applies to your allegation, they will not reveal the information.

Often, even before a lawyer-client partnership has formally been established, the responsibility of confidentiality starts. And before you hire them, you would definitely have to share a certain amount of details when you first meet with an attorney. This is to give the lawyer a chance to see whether or not they should take the case. If it applies to your specific legal argument, this information must also be held private. Even if no formal lawyer-client relationship is ever established, the obligation still applies.

Finally, long after the case is settled and the attorney-client relationship has officially ended, the obligation of confidentiality continues forever. After they are done defending you in court, your lawyer is not allowed to reveal sensitive details linked to your lawsuit.

With the Responsibility of Confidentiality, the primary thing to note is that it only applies to matters relevant to your legal argument. Your lawyer should, therefore, be authorized to disclose information that is not relevant to your legal representation.

What is the “Attorney – Client Privilege”?

The Attorney-Client Privilege is a much stricter standard, on the other hand. For the purpose of getting legal advice or help, it covers correspondence between a client and their attorney. It prevents both the client and the counsel from being pressured in a court of law to disclose sensitive correspondence.

The following five elements must be fulfilled in order for a contact to be covered under the attorney-client privilege:

  • At the time of contact, the person seeking the right must be a client, or had tried to be a client.

  • The person receiving the correspondence must act as the lawyer of the individual.

  • Communication must be confidential, that is, only between a client and an attorney, without non-client interference.

  • Communications must be made in order to receive legal advice, services, opinions or help in the form of legal proceedings.

  • Only the client can waive the privilege, and they must show informed consent to waive. The lawyer can not waive the privilege for you.

  • The attorney-client privilege is accessible only where a formal attorney-client relationship has been formally formed, unlike the obligation of confidentiality. Under federal rules, even after representation is complete, the right continues. If they have granted prior permission to make a disclosure, it persists even after the client has died. Regarding how long the right lasts, state laws differ.

  • Currently, the right of the attorney-client is an evidentiary concept that is meant to facilitate frank and open dialogue between the client and the attorney they hired. The theory is that you will be more likely to provide them with accurate disclosures if you know that you or your counsel will not be forced to reveal confidential details. One of the most important evidentiary rules open to clients is the attorney-client privilege.

Are there cases where my sensitive details can be revealed by my lawyer?

Yeah, there are exceptions to both the confidentiality requirement and the right of the attorney-customer. If the correspondence falls beyond the scope of either of these exceptions, the duty of the attorney to keep the information confidential is no longer valid and the information can be revealed to the judge or other authorities.

In the following conditions, information usually covered under the Obligation of Confidentiality can be disclosed:

  • Consent: If the individual consents to disclosure, details will be released. This can be either articulated (i.e., oral or written) or inferred by the actions of the client. The consumer must be advised as to the ramifications of disclosure.

  • Self-Defense of Counsel: If it is appropriate to protect themselves against a personal allegation the client filed against them, the attorney may reveal confidential details.

  • Prevent Client from Committing a Crime: The lawyer could reveal details about the crime if the client is about to commit a crime involving the death or serious bodily injury of another. This also relates to offences involving substantial financial loss.

  • Judicial Order or Rule of Law: If a court requires a disclosure to be made by the attorney, or if necessary by law, they will be required to obey the directions of the judge.

  • The attorney-client privilege exceptions include:

  • Disclosure by Customer: If the client discloses details to a party other than its counsel or employees, the right has been essentially waived (lost). The interaction can then be used in court. Also, the client can agree to disclosure.

  • Crime/Fraud: The lawyer could disclose the details if the client sought the services of the lawyer in order to commit or assist in the commission of the crime.

  • Joint Client Exception: Presume that two individuals are employed by the solicitor to represent them as joint customers. If they subsequently file a complaint with each other, if they wish, each side will use the lawyer as a witness. The attorney may then reveal data regarding either side.

  • Self-Defense of Attorney: As a defense in court, if the client wishes to sue them, the attorney can reveal the client’s details.

  • As a customer, it is also necessary for you to be aware of the boundaries of confidentiality requirements. Understand that there are some cases in which it is possible to expose the dialog between you and your lawyer, but this is relatively uncommon.

Who will see my sensitive details?

There are also times where confidential information can be needed as evidence in court for submission. For instance, if a formal request for information is submitted by the opposing lawyer, a judge may demand that it be released. The numerous evidentiary rules control these formal requests and will differ by jurisdiction.

It is also common practice to do work on one case for many lawyers in the same business. In this case, other attorneys in the company may be made aware of your correspondence. Usually, this is approved by state legislation, because the lawyers of the same firm are bound by the same rules of confidentiality. However, you can notify your lawyer of your concerns if you are opposed to another lawyer carrying out work on your case.

What happens to my data after the case is over?

And after the case has been settled, both the confidentiality requirement and the attorney-client privilege continue. No matter what the outcomes of the case are, according to the responsibility and the right, the counsel is not permitted to reveal any details.

Therefore, whether a particular lawyer has worked on your case before, or has worked on a similar case you were interested in, it is always necessary to notify your lawyer. Such data remains confidential and may have repercussions about what may or may not be revealed in a subsequent case. Be sure to alert your lawyer of any prior litigation as well as the entire history of your legal argument.