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Overview: Duty Of Confidentiality

Similar to the right of the attorney-client, a confidentiality requirement protects correspondence between a lawyer and a client. This refers to oral and written correspondence rendered to the lawyer by the client and to the client by the lawyer. An attorney does not disclose the details of these correspondence without the client’s permission. The responsibility extends to public defenders as well as private lawyers in the criminal justice system.

There are some types of cases, however, in which the requirement of confidentiality can be waived. For example, if the lawyer and the client do not have a fair expectation of privacy in a position where they are having a conversation, protection would not apply. When other people overhear an audible conversation in a public place between them, they will be able to testify in court about the contents of that conversation. Often, when a client addresses a case in public on a mobile phone, this law emerges.


Inviting third parties to be present

In a meeting with their lawyer, a defendant can ask a friend or family member to join them. As those third parties are not part of the partnership between the attorney and the client, this could result in a waiver of confidentiality for that discussion. The prosecutor might, in principle, ask the third party to testify about the conversation, or the prosecutor would occasionally even be able to ask the defendant to testify. The discussion would remain confidential if the defense attorney can convince the judge that the involvement of the third party was appropriate to further their representation. In helping the prosecutor to understand the facts of the case or formulate their plan, the third party may have played a crucial role. The court can also decide whether the defendant wished to remain private throughout the conversation.

Realistically, the prosecutor is unlikely to find out about a certain meeting that included the involvement of the family member of the defendant. And if they found out, because it was important to the case, they probably won’t ask the family member to testify in court about the conversation.


Disclosure to third parties of Claims

When a defendant later reveals to a third party the contents of a conversation with their counsel, the confidentiality of that conversation will be waived. For spouses and often religious leaders, such as priests, there are exceptions to the rule. In general, however, if a defendant discloses details freely, they have no further right of privacy.

In Jails Conversations

If the defendant and the attorney use a private room in the facility to communicate and do not speak loudly enough for anyone to hear them, a discussion in a jail or prison is confidential. More complex questions can be answered through phone calls. The offender must be vigilant to discourage prison officers or other prisoners from eavesdropping, which may waive the confidentiality requirement. Guards or prisoners may argue that the defendant talked loud enough to be overheard. This would allow them to testify about the discussion. Speaking through a glass partition with an attorney in person at a jail can pose similar concerns.

If a defendant is informed by prison officials that their phone calls will be tracked, this alert may eliminate confidentiality for any phone calls made afterwards by the defendant. A prison officer who sees a prisoner talk with their lawyer about the details of their case will be able to testify to what they said.