Attorney-Client Privilege vs. the Duty of Confidence: What’s the Difference?

May 21, 2021

An attorney-client relationship is a relationship that is formed when a lawyer agrees to perform legal service for a client in return for some type of compensation. This relationship includes various duties owed to clients, particularly the duty of confidence. People who aren’t trained in the law have heard these terms thrown around in various popular “true crime” television shows, but they are rarely, if ever, accurately explained.

Because the attorney-client privilege and the attorney’s duty of confidentiality both have the ultimate goal of protecting clients’ information, there are similarities between the two concepts concerning how and when information may be disclosed. Generally, both attorney-client privilege and the attorney duty of confidentiality must be maintained until the client gives permission for the information to be shared. Additionally, such information will still be confidential after the representation ends.

The Attorney-Client Privilege

The attorney-client privilege prohibits communicating client information as a matter of law. Private communications between a client and an attorney are privileged and may not be used against a client, even though sworn testimony unless the client waives the privilege. 

The purpose of the privilege is to encourage the free and open exchange of information between attorneys and clients, without concern that this information could be used against the client. Specifically, the privilege protects communications:

  • Between a client and a lawyer, 
  • Outside of the presence of third parties,
  • Which are made for the purpose of obtaining legal advice or assistance.

The presence of third parties can nullify the privilege, absent certain exceptions. 

The Duty of Confidence

In contrast, the duty of confidentiality prohibits a lawyer from disclosing client-given information as a matter of legal ethics. Absent consent, the lawyer may not reveal any information concerning the representation of the client. This duty is designed to encourage clients to tell their attorneys everything that may be important to their legal issues.

The duty of confidence applies not only to matters communicated in confidence by the client but also to all information relating to the lawyer’s representation, even information relating to the representation obtained from another source.

However, the duty of confidentiality is not absolute. Attorneys may reveal any information that:

  • Is for the purposes of obtaining legal advice about whether the attorney’s conduct complies with relevant ethical rules,
  • Is used to defend against claims made against the attorney by the client,
  • Is necessary to prevent death or substantial bodily harm,
  • To prevent the client from committing a crime or engaging in fraud,
  • Is used to comply with a court order.

An Easton Accident Attorney Can Explain the Duties Under an Attorney-Client Relationship

If you have suffered a personal injury in Pennsylvania, contact an Easton accident attorney at Drake, Hileman & Davis for your free consultation before speaking with your insurance company about anything beyond the very basics. We’ll help you fight against the unfair and often unscrupulous tactics that insurance companies often use.