What is the difference between the duty of confidentiality and the attorney-client privilege?

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The attorney-client or lawyer-client privilege is an evidentiary rule which prevents a court from compelling a client of an attorney to reveal confidential communications she had with her lawyer. The attorney may likewise not reveal any confidential information unless authorized by the client. There are some narrow exceptions, see below. Notice the words compel, confidential and communication. Voluntary disclosure by the client is of course permitted. Confidential means not shared with others. Further, the information must be exchanged in a communication, oral or written.

Both client and attorney can risk making a communication non-confidential by inattention, for example, by discussing matters while they may be overheard. The client-lawyer privilege belongs to the client “…the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer” (CA Evidence Sec. 954).

In contrast, the duty of confidentiality is primarily an ethics rule and applies to the attorney only. Rule 1.6 Confidential Information of a Client. In California, however, it is also codified in 6068(e)(1) Business and Professions Code: “It is the duty of an attorney … to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client”. California takes client confidentiality very seriously.

One of the narrow exceptions to the lawyer-client privilege can be found in CA Evidence Code Sec. 956: “There is no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.” Here the lawyer may disclose confidential information without the client’s consent under the privilege, but not under the ethic rule of confidentiality. This is because the attorney is also bound by the duty to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” This creates a dilemma. Consider the case scenario and ethics opinion that follows,

“An Attorney represents an Executor in the probate of an estate. During the course of representation, the Attorney learns that the Executor has taken estate funds for personal use and intends to conceal the misappropriation in an accounting to be filed with the court. What are the duties of the Attorney upon discovery of the misappropriation?”

According to a non-binding ethics opinion, the lawyer must first request that the client correct any mismanagement and forego any advantage that the client may have wrongfully gained. If a client refuses to correct the accounting, the lawyer should prepare an “alternate accounting” and send it to the client for signature. The lawyer may not file an accounting if the client refuses to sign the corrected version. If the lawyer is summoned to court for failing to file an accounting, he or she may state in a declaration that an alternate accounting was submitted to the client. Withdrawal may be advisable to the lawyer if it can be accomplished without causing harm to the client. The lawyer is not allowed to reveal the client’s misappropriation to a new lawyer.

Related:

The Client with Diminished Capacity in California

The lawyer-client privilege continues after death

San Diego County Bar Association Ethics Opinion1990-2

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