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CONFIDENTIALITY AND ATTORNEY-CLIENT PRIVILEGE
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By James Aaporekuu (CIArb, DLP, LL.B)
CONFIDENTIALITY AND ATTORNEY-CLIENT
PRIVILEGE
By: James Aaporekuu (January, 2022)
PREAMBLE
The concept of confidentiality and attorney-client privilege both concern information that the
lawyer must keep private and are protective of the client’s ability to confide freely in his or her
lawyer, but the concepts are not synonymous.1 Piercing the attorney-client privilege may be one
of opposing counsel’s top priorities irrespective of the strength of their case. The privilege protects
confidential communications between the client and the lawyer made for the purpose of obtaining
or providing legal assistance to “encourage full and frank communication and thereby promote
broader public interests in the observance of law and administration of justice.” 2 The privilege
recognises that sound legal advice depends on the lawyer being fully informed by the client.
The rule pertaining to the attorney-client privilege is probably one of the most significant rule in
the code of professional responsibility3 that requires all lawyers to adhere to a certain standard of
professional ethics. The instant topic for discussion cannot be deemed to be absolute without
delving into what the rules of confidentiality talks about because these two words are intertwined
or interconnected. Confidentiality on the other hand is one of the most critical of legal ethics and
must be upheld by all lawyers in the legal profession. When a client engages the lawyer, the client
confidentiality is at the heart of every lawyer’s engagement with a client.
This presentation therefore, is premised on and or addresses the issue of situations where a lawyer
may intend to use or uses the information that he obtains from a client and uses it beyond the
intended purposes, which may amount to the detriment of his own client. The duty of
confidentiality therefore mandates an attorney not to reveal anything that is related to the client
1
Sue Michmerhuizen, Confidentiality, Privilege: A Basic Value in Two Different Applications (Centre For
Professional Responsibility, 2007)
2
United States v. Zolin, 491 U.S. at 562, 109 S.Ct. 2619 (quoting Upjohn Co. v. United States, 449 U.S. 383, 389,
101 S.Ct. 677, 66 L.Ed.2d 584 (1981) < https://www.americanbar.org/groups/litigation/committees/business-torts-
unfair-competition/practice/2017/how-to-lose-attorney-client-privilege/> accessed 01/09/2021.
3
Ethics in Context Winter 2005 (Practicing Law Institute, New York, New York 10019, 2005) p. 171
1
By James Aaporekuu (CIArb, DLP, LL.B)
representation without the client consent.4 The rate at which some attorneys take advantage of their
clients by revealing information relating to their case without their consent is overwhelming
nowadays and this paper purposely intends to elaborate on this subject matter herein and highlight
some of the consequences that a lawyer may face for engaging in such unprofessional conduct.
In so doing, I shall also bring to bear some of the situation under which confidential information
between attorney-client can be revealed without the breach of any code of professional ethics. It
should be understood that there are two basic standards that lawyers must adhere to when it comes
to keeping personal information confidential.5 The first is called the lawyer’s Duty or principle
of Confidentiality, while the second is called the Attorney-Client Privilege. Each of these
principles would be discussed chronologically.
PRINCIPLE OF CONFIDENTIALITY
The duty of confidentiality seems to have been the invention of the eminent late-nineteenth-century
lawyer called David Dudlley Field.6 The principle is premised on the fact that, an attorney must
know all the fact if he or she is to best serve the client and that a client is not likely to furnish full
information with the attorney without assurance that information he/she gives out that may be
incriminating or embarrassing may not be revealed outside attorney-client relationship.7 The
general proposition of confidentiality encompasses both ethics and evidentiary rules relating to
attorney-client privilege where the attorney-client privilege is a rule of evidence that is only limited
to what confidential information may be known in litigation by way of testimony or discovery. It
is therefore worthy to note that the ethical rules of confidentiality are somewhat broader than the
attorney-client privilege to be discussed subsequently as they lid a lawyer’s duty not to reveal
information about a client in anyway.
One may therefore postulate that, professional secrecy is a fundamental principle that all lawyers
must obey. It is stipulated under Article 2.3.1, CCBE of the Code of Conduct for European
Lawyers that;
4
LegalMatch, Confidentiality and Attorney-Client Privilege < https://www.legalmatch.com/law-
library/confidentiality-and-the-attorney-client-privilege.html> accessed 01/09/2021.
5
ibid
6
L. Ray Patterson, Legal Ethics and the Lawyer’s Duty of Loyalty, 29 Emory L.J. 909, 941-42 (1980)
7
Therese A. Cannon, Ethics and Professional Responsibility for Legal Assistants (Third Edition, Aspen Law &
Business, 1999) p. 106
2
By James Aaporekuu (CIArb, DLP, LL.B)
It is of the essence of a lawyer’s function that the lawyer should be told by his client or her
client things which the client would not tell to others, and that the lawyer should be the
recipient of other information on a basis of confidence. Without the certainty of
confidentiality, there cannot be trust. Confidentiality is therefore a primary and
fundamental right and a duty of the lawyer. The Lawyer’s obligation of confidentiality
serves the interest of the administration of justice as well as the interest of the client. It is
therefore entitled to special protection by the state.
A fundamental principle in the client-lawyer relationship is that, in the absence of the client's
informed consent, the lawyer must not reveal information relating to the representation.8 This
contributes to the trust that is the hallmark of the client-lawyer relationship. A violation of the
ethics rule may lead to disciplinary sanctions. Lawyers’ duties of confidentiality are defined not
only by the attorney-client privilege, but also by the Codes that regulates the legal profession in
each jurisdiction. Some of the key principles to take note of when it comes to the discussion of this
topic is to the effect that, it is both the duty and obligation of the lawyer to keep information
received from the client confidential and it is an enforceable right that protects confidential
information from being revealed and used against the client.9
RULES OF PROFESSIONAL CONDUCT ON THE DUTY OF CONFIDENTIALITY IN
DIFFERENT JURISDICTIONS
This aspect of the discussion tries to highlight some few selected countries and the laws they have
in force in terms of confidentiality issues between an attorney and client relationship.
THE AMERICAN APPROACH
Now, the American Bar Association Model Rules of Professional Conduct requires that “A lawyer
shall not reveal information relating to the representation of a client unless the client gives
informed consent, the disclosure is impliedly authorized in order to carry out the representation or
the disclosure is permitted by law”10. Similar proviso is found in the 1971 Law on the Legal
Profession (France) which mandates that:
8
LegalMatch, Confidentiality and Attorney-Client Privilege < https://www.legalmatch.com/law-
library/confidentiality-and-the-attorney-client-privilege.html> accessed 01/09/2021.
9
Deborah L. Rhode and David Luban, Legal Ethics (Third Edition, Foundation Press, 2001) p. 218 - 219
10
Rule 1.6 (a)
3
By James Aaporekuu (CIArb, DLP, LL.B)
“in all matters, whether in the context of legal advisory services or in legal defense, the
written advice sent by a lawyer to his client or intended for the client, the correspondence
exchanged between the lawyer and his client, the meeting notes and more generally, any
element of file, are covered by professional secrecy”.11
The Act supra provides that the divulging of information of a confidential nature by a person who
holds such information either by his status or by his profession or as a result of a mission or
temporary function, is punished by one year imprisonment and/or a fine of Euros 15,000. As
already adumbrated somewhere in this presentation, the scope of confidentiality is much wider
than that of the attorney-client privilege.
THE RWANDAN APPROACH
In the Rwandan context, confidential information can be considered under Rwandan Bar
Association Rules and Regulations as “…anything of a confidential nature that a lawyer learns
from clients, the opposing party or his counsel or third party in the course of carrying on the
representation of his client has a moral or material interest in keeping private”. According to the
Internal Rules and Regulations of The Rwanda Bar Association, professional secrecy covers
everything that is said in the office of the Advocate, the correspondence between the Advocate
and his/her client and that exchanged between. It also covers the talks and negotiations between
Advocates, both in relation to their content and the very fact of their existence, except if the fact
of their existence must be revealed for just cause left at the discretion of the President of the Bar
Association. The Advocate as well as all the staff of his/her Law Firm are strictly required to
respect the professional secrecy, which is absolute, and which cannot in principle be revealed.12
THE GHANAIAN APPROACH
Just like how the confidential information of the client are very well protected in other
jurisdictions, Ghana is not an exception to this general rule hence, has made clear provisions for
the proper protection of secrets that a client may only reveal to an attorney never to be revealed
unless otherwise required by law to do so.
11
Article 66-5 of the Law of 1971 on the Legal Profession (France).
12
Internal Rules and Regulations of the Rwanda Bar Association, <
https://www.rwandabar.org.rw/attached_pdf/RBA%20Internal%20Rules%20and%20regulations-1608279466.pdf>
accessed 06/09/2021.
4
By James Aaporekuu (CIArb, DLP, LL.B)
In Ghana, the law on the duty of confidentiality that lawyers/attorneys are bound to respect are
provided for by Ghana Legal Professional Rules, 1969 under Rule (5)(3) which stipulates that:
“A lawyer who accepts a brief is in a confidential position, and he shall not communicate
to any other person the information which has been confided to him as such lawyer; and
he shall not use either such information or his position as a lawyer to his client's detriment.
The duties here stated continue after the relation of lawyer and client has ceased”.13
It is further required in the Code of Ethics of the Ghana Bar Association in Rule 38 that, “a
lawyer commits a misconduct if he discloses or permits to be disclosed without his client’s consent
any confidential information made to him or his firm by or on behalf of his client and whether or
not he has ceased to act for the client, unless required to make such disclosure by law or by the
lawful order of any court”.14 One may therefore ask what is covered by the confidential information
we are talking about here? In responds to this, it is any information that a client would never wish
to reveal to any person but for the relationship he/she has with the lawyer, he reveals it in order for
the lawyer to best represent his/her interest in court. Confidential information is an information
that is gained during or relating to representation of a client. Therefore, any information that a
lawyer becomes privy to because of his engagement with a client, assumes the status of a
confidential information and cannot be revealed to a third-party without the consent of the client.
If the information is revealed to a third party without the prior consent of the plaintiff, that would
amount to the breach of professional ethics which I have highlighted from different jurisdictions
above.
However, it must be borne in mind at this juncture of the presentation that, the breach of duty of
confidentiality by a lawyer would not arise if the said information revealed do not amount to the
detriment of his client or it is not embarrassing to the client. The duty of confidentiality extends
indefinitely, even after the case is resolved and the attorney-client relationship has formally ended.
A client’s lawyer is not permitted to disclose confidential information related to his claim after he
is done representing him in court.
13
Legal Profession (Professional Conduct And Etiquette) Rules, 1969 (LI 613), Rule (5)(3) < https://glc.gov.gh/wp-
content/uploads/2015/09/LEGAL-PROFESSION-PROFESSIONAL-CONDUCT-AND-ETIQUETTE-RULES-
1969-LI-613-.pdf> accessed 06/09/2021.
14
Code of Ethics of the Ghana Bar Association, Rule 38
5
By James Aaporekuu (CIArb, DLP, LL.B)
EXCEPTIONS TO THE DUTY OF CONFIDENTIALITY
There is the adage that, to every general rule, there is always an exception and the topic under
discussion is no exception to that rule. The American Bar Association Model Code has three main
exceptions to the duty of confidentiality set out in 1.6 (a).15 The most important one is that the
lawyer is exculpated from the duty of confidentiality if the client gives his informed consent.
Secondly, the next exception is when the disclosure is impliedly authorized to advance the best
interest of the client and is either reasonable under the circumstances or customary in the
professional community.
The Third and last exception in this area of study is public policy. This exception to the general
rule of duty of confidentiality requires that, a client confidential information can be revealed by
the lawyer if the disclosure of such information is for the prevention of the commission of future
crimes. Again, the said confidential or secrets of the lawyer’s client can be disclosed if an order
was made by the competent court of jurisdiction direction the lawyer or any other person who is
in possession of such information to reveal it. In addition, a lawyer can reveal the secret of his
client to defend against a claim. For instance, if the client misleads the lawyer to represent him in
court and the intend of the client is later found to be ill thoughts or engaging in a criminal act or a
malicious prosecution, the lawyer in such a situation can use information he had from his client in
pursing such a case as a defence against his own client in order to exonerate himself from the ill
mindset of the client.
Another issue to be considered is that, at what point in time would one say the duty of
confidentiality owed to the client has elapse? Now, it is worth to note that in all jurisdictions, the
duty of confidentiality continues regardless of whether or not the representation continues. The
New York Rule of Professional Conduct 1.9 (c) provides that a lawyer who has formally
represented a client in a matter or whose present or former firm has formally represented a client
in a matter shall not thereafter, use confidential information of the former client to the disadvantage
of the former client unless the rules would permit so. Similar provisos can be found in the Legal
15
Legal Ethics Training Program, (Study Materials for the Conference, Kigali, Rwanda). A program which was
organized by the African Centre on Law and Ethics in collaboration with INES-Ruhengeri Law Faculty, GIMPA
Law Faculty (Ghana), Fordham Law School and White & Case LLP. (15 – 18 July 2019).
6
By James Aaporekuu (CIArb, DLP, LL.B)
Professional Rule 5-316 that the duties of the lawyer not the reveal confidential information of his
client continue after the relation of lawyer and client has ceased. 17 The duty of confidentiality
continue despite the end of the retainer and even after the death of the client.18 This now leads us
to how attorney-client privilege works together with the duty of confidentiality.
ATTORNEY-CLIENT PRIVILEGE
Conversely, the attorney-client privilege is a much stricter standard. It protects communications
between a client and their attorney for obtaining legal advice or assistance. It protects both the
client and the attorney from being compelled to reveal confidential communications in a court of
law. The attorney client privilege is oft discussed in the context of litigation, where it protects only
direct communications an attorney and client made for the purpose of obtaining legal advice.19 The
attorney-client privilege protects and preserves communications between lawyers and their clients
and maintains their secrecy or confidentiality.20 In professional responsibility context, the privilege
has been interpreted to limit disclosure of information falling within broad definitions even if the
information is otherwise publicly available as it was expressed in the case of Lawyer Disciplinary
Bd. v McGraw,21 that the information divulged would be public under the Freedom of Information
Act nor by the fact that the lawyer was implicitly authorized to make such a disclosure as an
ancillary function of filing public pleadings containing that information.
Generally, the attorney-client privilege will apply only if the communication was confidential and
will not apply where the communication was made to an attorney for purposes of public
disclosure.22 Also, the privilege may not apply when the communication was made to or in the
presence of a third person. For instance, in Cook v. Hayden23, the Virginia Supreme Court held
that where the grantee was present at an interview, which took place between the grantor and his
16
Legal Profession (Professional Conduct And Etiquette) Rules, 1969 (LI 613), Rule (5)(3) https://glc.gov.gh/wp-
content/uploads/2015/09/LEGAL-PROFESSION-PROFESSIONAL-CONDUCT-AND-ETIQUETTE-RULES-
1969-LI-613-.pdf> accessed 06/09/2021
17
The CCBE Code of Conduct for European Lawyers in Article 2.3.3 also says that the obligation of confidentiality
is not limited in time.
18
SRA Code of Conduct 2011, Chapter 4
19
United States v United Shoe Mach. Corp., 89 F. Supp. 357, 358-359
20
University of Ghana, Attorney-Client Privilege < http://www.ug.edu.gh/legalcounsel/attorney-client-privilege>
accessed 31/08/2021.
21
461 S.E. 2nd *50 (W. Va. 1995)
22
NLRB v. Harvey, 349 F.2d 900, 904 (4th Cir. 1965) (quoting 8 J. WIGMORE.
23
183 Va. 203, 31 S.E.2d 625.
7
By James Aaporekuu (CIArb, DLP, LL.B)
attorney, and the grantee testified as to what occurred at the interview, the attorney-client privilege
did not exist. Therefore, the attorney's testimony concerning the interview was properly admitted.
Furthermore, a communication by one party to an opposing party's attorney is not privileged.
A difficult question arises when a third person, of whom the client is unaware, hears the client's
communication. Under such circumstances, most courts have ruled that the eavesdropper may
testify.24 McCormick suggests that if the client used reasonable precautions to prevent being
overheard, the eavesdropper, as well as the attorney, should be prevented from testifying.25
However, the majority view generally ignores the circumstances of the conversation.26
In order for a communication to be protected under the attorney-client privilege, the following
elements must be met:
The person claiming the privilege must be a client, or had sought to be a client at the time of
communication. A person cannot just wake up to claim an attorney client privilege without
establishing that he was a client to the lawyer he seeks to hold accountable. The person receiving
the communication must be acting as the person's lawyer; the communication must be private, that
is, between a client and attorney only, with no involvement from non-clients. The communication
must be made for the purpose of securing legal advice and lastly, the client may only waive the
privilege, and they must demonstrate informed consent to waive same27.
Confidentiality, the attorney-client privilege is available only where a formal attorney–client
relationship has been formally established. Under federal laws, the privilege continues even after
representation is complete. It continues even after the client has become deceased, unless they
have given prior permission to make a disclosure28. State laws vary regarding how long the
privilege lasts. The attorney-client privilege is actually an evidentiary rule and is intended to
encourage frank and open dialogue between the client and the attorney they have hired. The idea
is that if you know that you or your attorney will not be required to disclose sensitive information,
24
Commonwealth v. Griffen, 110 Mass. 181 (1872)
25
C. McCormick, EVIDENCE § 87, at 205 (3d ed. 1984)
26
Thomas C. Dawson Jr. et al, The Attorney-Client Privilege (University of Richmond Law Review, Volume 19,
Issue 3)
27
LegalMatch, Confidentiality and Attorney-Client Privilege < https://www.legalmatch.com/law-
library/confidentiality-and-the-attorney-client-privilege.html> accessed 03/09/2021.
28
ibid
8
By James Aaporekuu (CIArb, DLP, LL.B)
you will be more likely to provide them with detailed disclosures. The attorney-client privilege is
one of the most powerful evidentiary rules available to clients.
Moreover, the attorney-client privilege, sometimes referred to as the testimonial privilege, is a
concept from the law of evidence and is present in the common law or statutes. The client, acting
through the lawyer, may claim the privilege. The attorney-client privilege and work product
doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or
otherwise required to produce evidence concerning a client.
The attorney-client privilege only protects the essence of the communications actually had by the
client and lawyer and only extends to information given for the purpose of obtaining legal
representation. The underlying information is not protected if it is available from another source.
Therefore, information cannot be placed under an evidentiary “cloak” of protection simply because
it has been told to the lawyer29.
By contrast, the ethical duty of client-lawyer confidentiality is quite extensive in terms of what
information is protected. It applies not only to matters communicated in confidence by the client
but also to all information relating to the representation regardless of whether it came from the
client herself, or from another source.
So, if a court determines that a particular information is not covered by the attorney-client
privilege, it still may be covered by the lawyer’s ethical duty of confidentiality. However, under
the exception to confidentiality related to compliance with a court order, the lawyer may be
compelled to reveal the information nonetheless. Material not shielded by the lawyer work-product
doctrine may likewise still be encompassed under the ethical duty of confidentiality.
Confidential information is to remain confidential throughout the representation, and thereafter,
even after the death of the client as already stated in some jurisdictions professional code of
conducts supra. Along with the basic principle of maintaining the privacy of client information, a
key precept of ethically maintaining confidentiality is that the information not be used to the
detriment of the client, but rather only to advance the client’s interests. Even information gained
about the client after the representation has concluded is to be kept confidential. However, once
29
Sue Michmerhuizen, Confidentiality, Privilege: A Basic Value in Two Different Applications (2007)
9
By James Aaporekuu (CIArb, DLP, LL.B)
information has become generally known, not just known by some few others, it loses the
protection of lawyer confidentiality.
In addition, a client can give informed consent to his or her lawyer to reveal confidential
information or information otherwise protected by the privilege. This consent may be implied in
certain circumstances. The attorney-client privilege can be inadvertently waived at trial by a failure
to object to prevent testimony about the privileged communications.
Exceptions to attorney-client privilege may arise when there is an overriding public policy, as
enunciated by the court or a fiduciary responsibility to another party, such as a shareholder. A
“crime-fraud” exception to the privilege allows disclosure of information communicated by the
client in an attempt by the client to use the lawyer’s services to commit or cover up a crime or
fraud.
The exceptions to the confidentiality rule vary somewhat from state to state and reflect different
weightings of the balancing process between the several societal goals involved. Most jurisdictions
make a specific exception in their ethics rules to permit disclosure that will prevent death or
substantial bodily injury. In addition, the ethics rules in most jurisdictions permit and sometimes
require a lawyer to disclose information in order to prevent and/or rectify the consequences of a
crime or fraud that injures the financial or property interests of another. The crime-fraud exception
to confidentiality differs somewhat from the attorney-client privilege crime-fraud exception, in
that it is tied to substantial injury and addresses rectification.
CONCLUSION
In a nutshell, it is evident from the above detailed proposition on the topic, confidentiality and
attorney-client privilege relationship that, if it is looked at generally, there seems to be of the
same value or seems to be no difference between them and the instant presentation has really gone
a long way to expose the relevant of these two principles in the legal profession as well as drawing
their differences. Now therefore, the issue as to whether a lawyer can use a client secret is now
resolved to the extent that, the answer is in the negative unless such disclosure is by court order or
it is used as a defence by the lawyer or such disclosure is done under public order. On the other
hand, is has also been well articulated in this article that the attorney client-privilege is nebulous
since there are exceptions to its application.
10
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