Attorneys’ responsibility to protect client confidentiality extends more widely and is not quite the same thing.
It is an ethical and sometimes contractual obligation not to disclose details relating to the representation of the client without the written consent of the client. It also obliges lawyers to take appropriate measures to avoid unauthorized disclosure or access to such information.
Like other corporations, law firms are also subject to the Act on the Privacy of Personal Information (POPI) in South Africa. This obliges them to take all appropriate measures to protect personal information from unauthorized compilation, retention, use or dissemination.
Unlike the right of the attorney-client, which is exercised only when there are legitimate requests for information, there is a continuing responsibility to preserve confidentiality. It outlives the client-law partnership and continues long after the client’s death.
A lawyer who fails to comply with the duty of confidentiality can be sued for damages.
Confidential information can, however, be used against a client in civil action, while protected information – which, by default, is also confidential – cannot be used unless directed by a court of law.
Whereas the right of the attorney-client privilege is absolute, there are unique exceptions to the duty of confidentiality. For example, a lawyer may be allowed or forced to reveal confidential information to a client, without the client’s permission, for the following purposes:
- Preventing fairly assured death or serious bodily harm
- To discourage a client from committing a crime or fraud that is “reasonably certain” to significantly harm the property or finances of another person.
- “Prevent, mitigate or correct” a “reasonably certain” serious property or financial damage to another person.
- to seek legal advice
- Have a request toward an attorney
- To comply with some other statute or order of the court
- Identify and address conflicts of interest relevant to the change of employment of a lawyer.
Privilege maintains confidentiality
In essence, the right of a lawyer-client is what upholds the obligation of confidentiality of lawyers in legal proceedings. It is a rule of proof that prohibits lawyers from testifying to the substance of their oral or written contact with clients, or from being compelled to do so by an opposing legal team.
When will the right be waived?
The right to privilege is regulated by the concept of private one-on-one contact between a lawyer and his client.
For example, if a client consults his lawyer about punitive tax penalties levied on him, all shared information is confidential and the privilege rule is automatically enforced.
Even if the conversation was secretly filmed or vital documents leaked, they would not be admissible as evidence in court.