Why is it necessary to distinct the obligation of secrecy of a lawyer and the attorney-client privilege principle?
The obligation of secrecy and the attorney -client privilege can be lumped together in informal discussions, as both work to protect client knowledge from exposure. Their origins in statute and the exceptions that refer to each term, however, are distinct. It would prevent legal missteps to realize the root of the responsibilities.
All the knowledge you learn to work with your client applies to your legal obligation of secrecy. This responsibility remains prior to being part of the solicitor-client partnership, regardless of the source of the information or its confidential status. Exceptions to the ethical obligation of secrecy are often defined by the codes; they vary in some jurisdictions.
In common law, your duty of secrecy still remains, arising from the lawyer-client arrangement. Clear exceptions to this obligation have not been established by common law.
In comparison, for the purposes of legal counsel, attorney-client confidentiality only extends to correspondence between you and your client. The right is rooted in common law.
Clients may consent to the disclosure of information with regard to both the obligation of confidentiality and solicitor-client privilege. They could be considered to have waived secrecy or solicitor-client privilege under some cases.
What are the exceptions to the duty of secrecy and solicitor-client privilege?
Public safety exemption: a public safety provision that can allow or warrant notification in situations where there is any potential risk to an individual is accepted by the court practice.
The Supreme Court ruled in Smith v. Jones3 that public safety issues set aside solicitor-client privilege where a lawyer legitimately claims that public safety is a real, serious and immediate danger.
Similarly, rules of ethics of legal culture include exceptions to the ethical responsibility of secrecy for public safety. The Model Code of Professional Ethics of the Federation of Law Societies specifies that ‘A lawyer may reveal confidential details, but must not disclose more information than is required, if the lawyer suspects that there is an immediate danger of death or serious bodily harm on fair grounds, and disclosure is appropriate to avoid death or harm.’
Look at the precise terms of the public protection exemption of your civil society where it relates to the requirement of secrecy, in particular the forms of potential damage protected (criminal activity, abuse, significant physical injury, etc.) and the optional or obligatory essence of the duty of the counsel.
This exemption has been very narrowly defined and the exception is expected to occur only under the rarest of cases. Details revealed under the innocence of the defendant’s exemption cannot be held against the person whose information was disclosed by the prosecutor.
Notice that codes of conduct do not apply to the exception of innocence at stake in the light of the responsibility of secrecy. Whether the standards of ethics will forbid publication in cases where the exception to ‘innocence at stake’ may extend remains uncertain.
Disclosure of details: All standards of ethics of the legal society enable a lawyer to reveal sensitive information in order to set or obtain a fee or to protect himself or his associates against any accusation concerning the affairs of a client, whether illegal, civil or regulatory (for example, a complaint to a law society). The prosecutor does not share more detail than the situations require, regardless of the situation.
However, with attorney-client privilege, there is no equivalent exemption. As a result, while codes of conduct may allow lawyers to use information that is normally protected by the ethical obligation of secrecy, it may remain forbidden for lawyers to reveal information covered by the right of attorney-client. Attorney-client privilege can protect information when the client is not the adverse party, even if the codes of conduct will allow its use. This dispute between the obligation of secrecy and attorney-client privilege does not occur where the client is the adverse party.