These three concepts are important for businesses to understand when communicating with their lawyers, particularly with regard to disputes, litigation, and government investigations.
Confidentiality
Confidentiality is an obligation of an attorney to their client. In most U.S. jurisdictions, including Washington, D.C. (where this firm is based), a lawyer cannot knowingly reveal a client’s confidence or secret, use it to the client’s disadvantage, or use it for the advantage of the lawyer or a third person.
Client confidences are broadly defined, and there are few exceptions to the attorney’s duties. In Washington, D.C., these are not mandatory exceptions (duties to disclose), but are instead situations where the attorney is allowed to disclose information:
- to prevent criminal acts that may result in death or bodily harm;
- to prevent bribery or intimidation of witnesses, jurors, court officials, or others involved in proceedings;
- to prevent the client from committing a crime or fraud, or prevent, mitigate, or rectify substantial injury to others’ financial interests or property from the client’s crime or fraud.
In some other states, attorneys have an obligation to disclose specific types of information in cases such as these.
An attorney may also disclose confidential information with the client’s consent or pursuant to a court order, or in limited cases for the attorney’s own defense in a dispute.
The confidentiality obligation also extends, to some extent, to the attorney’s staff. An attorney must exercise reasonable care to protect client confidences disclosed to employees, associates, and other utilized by the lawyer.
Privilege
While confidentiality is an obligation of the attorney, privilege is a right of the attorney and client to keep their communications secret, even if they are demanded by law enforcement or in court proceedings. In civil litigation, privilege takes on special importance due to the expansive “discovery” system, which allows parties to collect large volumes of documents and information from each other.
Privilege protects communication by the client, as well as the attorney’s advice to the client. This is meant to ensure that the client can freely share information with the attorney. According to the U.S. Supreme Court in Upjohn Co. v. United States (1981), “privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client.”
Privilege is waived (becomes invalid) if the communications are disclosed to third parties outside the attorney-client relationship. Therefore, clients have to be very careful about involving anyone else in their communications with lawyers, such as sharing legal advice with others.
Work Product
Separately from privilege, attorneys’ “work product” is protected from disclosure. “Work product” includes documents prepared by parties and their attorneys, as well as documents containing attorneys’ mental impressions, in relation to litigation. Work product protection is only waived if the work product is voluntarily disclosed to an adversary or a conduit to an adversary.