Attorney-Client Confidentiality vs. Attorney-Client Privilege

“Attorney-client confidentiality” and “attorney-client privilege” are terms that non-lawyers frequently mistake for one another or misuse. This post explains the difference between those terms.

While this post cites California law, similar considerations are likely to apply in other states.

Attorney-Client Confidentiality

An attorney’s obligation to maintain client information in confidence is set forth in Business and Professions Code Section 6068(e) .

6068.  It is the duty of an attorney to do all of the following:…

(e) (1) To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.

(2) Notwithstanding paragraph (1), an attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.

Subsection (e)(1) establishes the obligation to maintain confidence and preserve secrets. The general rule is that an attorney may not disclose confidential client information without the client’s consent.

Subsection (e)(2) provides an optional exception if an attorney wishes to prevent a criminal act that the attorney reasonably believes is likely to result in death or substantial bodily harm.

Rule of Professional Conduct 3-100 and its accompanying notes discuss this obligation in detail.

Under certain circumstances, the obligation to maintain information in confidence can arise even if no attorney-client relationship is established. For example, State Bar Formal Opinion 2003-161 states:

A person’s communication made to an attorney in a non-office setting may result in the attorney’s obligation to preserve the confidentiality of the communication (1) if an attorney-client relationship is created by the contact or (2) even if no attorney-client relationship is formed, the attorney’s words or actions induce in the speaker a reasonable belief that the speaker is consulting the attorney, in confidence, in his professional capacity to retain the attorney or to obtain legal services or advice.

Attorney-Client Privilege

Attorney-client confidentiality is a relatively straightforward matter. Attorney-client privilege and its exceptions, in contrast, are fact-dependent and less subject to clear-cut decisions.

The starting point for attorney-client privilege is Evidence Code Sections 950-962. The most noteworthy Sections include the following.

• Section 952 – Confidential communications include the lawyer’s advice and opinion. Confidential communications do not include those that the client knows are received by a third party unless the third party (i) is present to further the client’s interests or (ii) is necessary to transmit the information or accomplish the purpose for which the lawyer is consulted.
• Section 953 – Under certain circumstances, the holder of the privilege can be someone other than the client.
• Section 954 – Under various circumstances, the client, whether or not a party to the litigation or other proceeding in question, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the client and lawyer. (This is the essence of attorney-client privilege.)
• Sections 956-961 – These Sections describe various circumstances under which there is no privilege.

The ways that a client is most likely to (inadvertently) waive attorney-client privilege include the following.

• By disclosing a communication to a third party other than as specified in Section 952 – for example, by forwarding an email exchange between client and attorney to a friend or relative, or by making it available to the public via a blog or social media post.
• By failing to assert the privilege during a litigation or other proceeding.

Related post: Why Your Lawyer Need Not Sign an NDA

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Dana H. Shultz, Attorney at Law +1 510-547-0545 dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.