Confidentiality & Privilege

SLA2202
Introduction to Confidentiality and Privilege

Confidentiality: Ethical duty owed by legal professionals

to keep client information private. Central to maintaining
trust in the lawyer-client relationship.

Privilege: Legal right that allows clients to refuse

disclosure of certain information in legal proceedings,
primarily to protect legal advice or litigation.

Core Difference: Confidentiality is broad and applies to all

information about the client, while privilege is limited to
specific situations involving legal advice or litigation.
 Definition and Scope:

Covers all information shared between

lawyer and client, regardless of relevance
to legal matters.
Confidentiali This obligation exists before, during, and
ty in the after the attorney-client relationship.

Legal
Importance:
Profession
Builds trust and openness, essential for
effective legal representation.

Allows clients to share sensitive

information without fear of exposure.
 • Broad Coverage: Includes all
communications, documents, and
interactions related to the client.
• Extends to law firm staff (paralegals,
interns, etc.), ensuring the duty applies
to all involved.
Scope of • Exceptions: Public information does
Confidentiali not fall under confidentiality.
ty • Information shared with consent is
excluded.
• Real-World Example: If a client
publicly discusses their legal matter,
the confidentiality obligations regarding
that disclosed information might be
waived.
Legal Basis for
Confidentiality

• Legislation and Codes: any relevant

statutes such as the Legal Practitioners Act,
professional codes of conduct
• Common Law and Regulatory Guidelines:
Many jurisdictions impose confidentiality
through both common law and regulatory
bodies.
• Key Case Example: R v Derby Magistrates'
Court, Ex parte B (1996) – established that
a client’s right to confidentiality is absolute
unless an exception applies.
 • Public Interest: Disclosure is allowed to
prevent serious harm or death (e.g.,
imminent harm to others).
• Court Orders: Judges can compel
Exceptions disclosure in certain legal proceedings.
• Fraud or Crime Exception:
to Confidentiality doesn’t protect a lawyer
Confidentiali from disclosing information if the client is
using legal services to further a crime.
ty • Case Example: Law Society v KPMG
Peat Marwick (2000) – court allowed
limited breach of confidentiality to
investigate professional misconduct.
Privilege and its Purpose

Legal Professional Privilege (LPP):Protects communications

made for obtaining legal advice or in anticipation of litigation.

Promotes full disclosure from clients, ensuring lawyers have

complete information to offer sound advice.

Policy Justification: Prevents compulsory disclosure of

sensitive information to third parties or courts.
Example: A client seeking advice on a potential lawsuit can
speak freely with their lawyer without fear that the advice will
be used against them.
 • Legal Advice Privilege: Protects all
communications between lawyer and
client for legal advice.
• Does not extend to communication with
third parties.
Types of • Litigation Privilege: Covers
communications created for the
Privilege dominant purpose of preparing for
litigation, including third-party
communications.
• Example: A lawyer’s notes on
discussions with an expert hired solely
for litigation are protected.
 • Privilege Belongs to the Client:
• Only the client can waive privilege.
• Lawyer’s role is to uphold and protect
this right unless waived by the client.
Who • Waiver by Client: If a client
Holds the voluntarily shares privileged
information with a third party, the
Privilege privilege may be waived.
? • Case Example: Three Rivers District
Council v Governor and Company of
the Bank of England (2004) –
clarified that privilege is limited to
specific client representatives and
cannot be broadly extended.
 • Privilege Limitations: Applies
specifically to legal advice or
preparations for litigation.
• Does not include routine
communications or business advice
unrelated to legal matters.
Scope of • Limitation Example: If a lawyer
Privilege advises on business strategy
without legal implications, privilege
does not apply.Key Point: Privilege
is narrower than confidentiality and
focuses on essential
communications for legal advice or
litigation.
Loss and Waiver of Privilege

Voluntary Waiver: Privilege can be waived intentionally by the

client sharing the information with others.

Inadvertent Waiver: Accidental sharing of privileged

information can lead to its loss, depending on jurisdictional rules.

Examples: Deliberate sharing of a legal memo with a third party.

Sending an email with privileged content to an unrelated party by

mistake.
Exceptions to Privilege
• Crime-Fraud Exception:
• Privilege does not apply if the lawyer’s services are used to further
a crime or fraud.
• Courts can compel disclosure in cases involving ongoing or planned
crime.
• National Security and Regulatory Requirements:
• Privilege may be set aside under statutory obligations for matters
like terrorism or regulatory investigations.
• Example: R v Cox and Railton (1884) – privilege does not protect
communications intended to further a crime or fraud.
Confidentiality vs.
Privilege: Key
Differences
• Confidentiality: Scope: All client information.
• Duty: Applies broadly under professional
conduct rules.
• Breach: Disciplinary action may follow a
breach.
• Privilege: Scope: Specific legal
communications.
• Application: Enforceable in court as an
evidentiary rule.
• Breach: Privileged information cannot be used
in court without waiver.
 Scenario 1: A client confesses to
a past crime – confidentiality
applies, but privilege may not if
Real-World the information isn’t related to
legal advice.
Application Scenario 2: A client discusses
s of intent to commit future harm –
Confidentia confidentiality may be broken
under the duty to prevent harm.
lity and
Privilege Discussion : Should
confidentiality be breached to
protect public interest?
 Recap: Importance of both
confidentiality and privilege in the legal
field.

Differences in application, scope, and

Conclusi limitations.

on and
Review Ethical and legal considerations for
maintaining these duties.

Final Thoughts: Upholding

confidentiality and privilege is essential
for maintaining client trust and integrity
in the legal system.
Task
• Imagine a scenario where you receive a
client who tells you they want help with
their divorce. They proceed to tell you
that in the time they have been
separated from their spouse they have
seeing someone else who also happens
to be married but they will also be
leaving their spouse for your client.
• You get home and your spouse requests
a divorce from you, and they tell you
they have been seeing someone for the
last year and it turns to be your client.
• Can you disclose the information you
have access to?