Attorney-Client Privilege vs. Confidentiality: What’s the Difference?

When you hire legal professionals for your lawsuit or legal defense, you immediately benefit from both attorney-client privilege and attorney-client confidentiality. These terms, however, are so similar that many people mix them up or consider them the same.

In truth, privilege and confidentiality are distinctly different. Below, we will explore the differences between attorney-client privilege and confidentiality to help you fully understand your rights and privileges in a legal setting. Alternatively, for more information at no charge, please call Schwartzapfel Lawyers at 1-516-342-2200 or visit us online today!

What Is Attorney-Client Privilege?

Attorney-client privilege is the common law doctrine that prevents lawyers from being compelled to reveal potentially incriminating and/or private client information. It refers to confidential communications such as legal advice, court order explanations, and other legal matters.

For example, if a lawyer defends a client who is at fault for a car accident, they are not obligated to reveal that fact to the court so long as they remain within legal bounds. A prosecuting attorney, for instance, cannot compel the defense lawyer to reveal incriminating information.

More broadly, attorney-client privilege prevents the forced or compelled disclosure of work-related information that an attorney may make or discover over the course of their litigation. Any work-related information or work product is protected under attorney-client privilege. This can include but is not limited to:

  • Strategies used by the defense or prosecution, which is privileged communication
  • Notes or other written information relating to the case or other legal assistance
  • Discovered evidence (under most circumstances)

Attorney-client privilege automatically applies to any information relating to a legal case. It also applies to information sent to or from an attorney, provided that information relates to a current legal action. Note that intent affects whether information can be reasonably expected to be under attorney-client privilege.

For instance, if an attorney writes an email to their client, that information can be reasonably seen as intended to fall under attorney-client privilege. But a friendly chat between the attorney and their client outside of office hours may not be protected under attorney-client privilege, and any assessment would hinge largely on the content of the chat as well as the location where it took place.

When Does Attorney-Client Privilege Not Apply?

Although attorney-client privilege is an ironclad rule in most cases, there are some occasions where it may be nullified completely. These include:

  • When a client attempts to conceal a crime or fraud after the fact. This is known as the fraud exception, in which such information about that activity is also not protected by attorney-client privilege.

Beyond this,attorney-client privilege cannot reasonably be expected to pertain to information spoken about in public. For example, if an attorney and their client(s) are speaking about sensitive case issues at a public café, it is unlikely that any information spoken aloud would be protected under attorney-client privilege.

Lastly, the attorney-client privilege can be waived by a client at any time. For more on this and other helpful insights into the attorney-client relationship, call Schwartzapfel Lawyers now and speak with a member of our award-winning legal team. Simply dial 1-516-342-2200 and allow us the honor and privilege of assisting you with your claim, furthering your understanding of the law and how it can benefit you and the ones you love!

What Happens If A Client Accidentally Reveals Information?

If a client accidentally reveals information in a setting where attorney-client privilege does not apply, it is a voluntary waiver of the information.

As an example, imagine a scenario in which an attorney is discussing some case details with their client. The client interrupts the attorney and answers a phone call from their friend. If the client tells their friend confidential information they had previously only shared with the attorney, it’s the same as waving the information from a legal standpoint.

With this in mind, an experienced attorney will quickly break down what attorney-client privilege means and how best to protect confidential information. In fact, many attorneys take the responsibility of educating their clients about information security very seriously. It’s much easier than clients think to accidentally reveal harmful or compromising information to a friend, family member, or the general public.

Also, you should note that this also applies to any accidental electronic communications a client may make. For instance, if a client accidentally sends an email with vital information about their case to a friend, they can’t simply say that it’s confidential and strike it from the record. It’s “out there” and in the world, so it can potentially be used against the client going forward.

Does Attorney-Client Privilege Apply to Consultations or Initial Meetings?

In most cases, a lawyer cannot legally reveal information you tell them unless it relates to an upcoming criminal action you plan to undertake.

Of course, most attorneys will be upfront about this and make sure you understand that the information you reveal is done so in confidence. Remember, lawyers don’t just have a legal mandate to operate like this; they also have reputations to protect. The right lawyer will not knowingly or in good conscience reveal information you want them to keep secret, even if they don’t represent you and you haven’t signed a contract.

This extends to any preliminary communications between you and a lawyer, except for certain electronic communications.

For instance, if you speak to a lawyer via email to ask about a potential consultation and reveal many details regarding your case in the same email, that information may be used against you later on. That’s because the lawyer didn’t know you were about to email them, so they couldn’t commit to information confidentiality beforehand.

If you need to speak to a lawyer about confidential information, just tell them you need a consultation. Don’t reveal any details of your case until you are in the office with the lawyer of your choice. As a potential client, your privileged information should still be kept safe, just in case.

What Is Attorney-Client Confidentiality?

Attorney-client confidentiality, on the other hand, is an ethical standard or rule of professional conduct. Attorney-client confidentiality states that attorneys can’t disclose information about their clients for privacy reasons unless that information is reasonably understood to be known by others. It’s also called the duty of confidentiality.

For instance, if a client reveals to their lawyer something sensitive about their personal life in the course of discovery, the client can rely on attorney-client confidentiality to ensure that sensitive personal information never sees the light of day.

Attorney-client confidentiality is a high standard maintained by all worthwhile law firms. For example, Schwartzapfel Lawyers guarantees attorney-client confidentiality for each of our clients. We never reveal sensitive or incriminating information about our clients, thereby ensuring that our clients can trust us with each of their needs.

To schedule your free consultation today, contact us now at 1-516-342-2200 or visit us online!

Times When Confidentiality Is Not Expected

As with attorney-client privilege, lawyers are not required to keep the information confidential if it pertains to an upcoming crime or an attempt to cover up a crime. For instance, if a client comes to their lawyer and explains that they wish to commit a crime the next day, that information is not confidential, and their lawyer is not ethically compelled to keep it secret.

In addition, confidentiality is not expected if the information in question can reasonably be assumed to be public knowledge or easy to acquire. For example, if a client reveals some sensitive information to their attorney, but that information is already on social media, that attorney may not be obligated to keep it confidential. However, they may still choose to do so or act as though it is confidential for the benefit of their client.

At its core, confidentiality is an ethical duty for the representation of the client. As such, most attorney-client communications will abide by this rule.

What Happens If an Attorney Violates Attorney-Client Privilege or Confidentiality?

While there are many excellent lawyers you can contact, there are also less-than-stellar law firms you should not work with. Some attorneys have bad reputations for violating the attorney-client privilege or confidentiality principles.

If an attorney violates attorney-client privilege knowingly or unknowingly, they could face severe penalties. These can include fines, censures, a suspension from the practice of law, and even disbarment by the American Bar Association. If this happens, the attorney will lose their license to practice.

That said, you should be aware of the fact that disbarment usually happens on a state-by-state basis, so an attorney could, in theory, be disbarred in one state but still maintain a legal practicing attorney in another. That’s one reason it’s a good idea to research a future legal representative before signing a contract. If the attorney has a history of being disbarred from other states, you should contact different legal professionals instead.

Differences Between Attorney-Client Privilege & Confidentiality

As you can see, the key difference between attorney-client privilege and confidentiality is that one is a legal protection and the other is an ethical rule or standard of conduct.

Significantly, all clients benefit from attorney-client privilege by law, which exists to ensure that lawyers cannot incriminate their clients or be compelled to reveal incriminating information unfairly.

Attorney-client confidentiality, on the other hand, is not a legal rule but an ethical standard that all lawyers must adhere to so as to gain and retain the trust of their clients. Without attorney-client confidentiality, it would be exceptionally difficult for a prospective client to contact a lawyer if they had anything sensitive to speak of.

Furthermore, attorney-client confidentiality is more open to interpretation than attorney-client privilege. For instance, a client may think that a piece of information said to their lawyer is more sensitive or confidential than what their lawyer initially assumed. For this reason, it’s a good idea to be explicit about the information you intend to keep confidential when discussing sensitive matters with your attorney.

Just to be safe, many lawyers default to confidentiality when discussing work-related topics with their clients. Accordingly, they have general rules to not speak of their clients or their clients’ lives outside of work.

To learn more now, contact Schwartzapfel Lawyers directly for a free consultation with one of our premier trial attorneys by visiting us online or calling 1-516-342-2200 today!

A Closer Look at Attorney-Client Privilege vs. Confidentiality

A helpful tool to grasp the primary difference between attorney-client privilege and confidentiality is the legal-ethical distinction.

Put simply, the attorney-client privilege is a legal doctrine that is necessary for the legal system to function properly. Different from this, attorney-client confidentiality is an ethical principle that allows attorneys to provide the best service possible for their clients without violating the law.

Together, attorney-client privilege and confidentiality operate as legal safeguards, giving attorneys the tools they need to protect your right so that they may advocate effectively on your behalf in court..

An evidentiary principle, attorney-client privilege extends to evidence matters in any legal case. That means it is:

  • Much narrower in scope compared to attorney-client confidentiality.
  • Refers just to communications between an attorney and his or her client.
  • Only protects specific types of information.
  • Is subject to exemptions under certain circumstances.

Attorney-client confidentiality is an ethical principle instead. As a result, it is:

  • Generally much broader in scope compared to attorney-client privilege.
  • Prevents an attorney from using confidential information in a way that can be disadvantageous to their client, even if it is technically legal according to the letter of the law.
  • Pertains to most information that can be used against the client regardless of whether or not the information was revealed by the client or some other third party.

Bottom line: While attorney-client privilege and attorney-client confidentiality make up two critical components of American jurisprudence, their differences are also important. As a citizen with constitutional rights, knowing them will enable you to better understand what your attorney can and cannot reveal to the court or others in the course of their representation and beyond.

Similarities Between Attorney-Client Privilege and Confidentiality

Attorney-client privilege and attorney-client confidentiality are very different, but they are also similar in some important ways.

For example, both have the same overall purpose: to protect the confidentiality of the information or communications shared between an attorney and their client.

Furthermore, attorney-client privilege and attorney-client confidentiality play a significant role in allowing clients to be open, honest, and thorough with their attorneys, without having to fear self-incrimination, reprisal, or other legal penalties.

Without these protections, clients might withhold valuable information that could compromise their legal defenses or lead to other miscarriages of justice.

When Are Attorney-Client Privilege and Confidentiality Needed?

Attorney-client privilege is a fundamental pillar of the American legal system. Without its existence and the functionality it affords jurisprudence, a prosecuting attorney could, for instance, simply ask a defense attorney if their client really did commit an alleged crime. Without the protection of attorney-client privilege, the defense attorney might be compelled to reveal the truth one way or the other. It would negate the entire point of the legal process.

Therefore, attorney-client privilege plays a vital role in ensuring that the legal process plays out as it should. It guarantees all accused individuals the presumption of innocence until proven guilty, as opposed to earlier forms of law, wherein individuals were commonly assumed guilty until proven innocent.

Attorney-client confidentiality is also needed, but for a different reason. It’s necessary to establish and maintain trust between attorneys and their clients so that clients feel confident about giving their lawyers the information needed to mount effective cases.

For example, if attorney-client confidentiality was not an ethical standard, clients might not feel comfortable revealing everything they know about their issues to their lawyers. In turn, this would make defense and prosecuting lawyers’ jobs much more difficult, if not impossible, to effectively carry out.

Because ofattorney-client confidentiality, however, clients can be reasonably assured that any sensitive information they may have about their professional or personal lives will be kept secret unless it is lawfully revealed through discovery during legal proceedings.

Bottom line:Attorney-client confidentiality and attorney-client privilege are necessary for the legal system to function properly, and legal clients can expect both concepts to apply in their cases.

Is Attorney-Client Privilege Legally Required?

In most interpretations of the law, attorney-client privilege is legally required for an attorney to operate properly. Specifically, lawyers shall not reveal any information that relates to the representation of a client or prospective client unless:

  • That client gives informed consent.
  • The disclosure is implicitly authorized to carry out the representation.
  • The disclosure is permitted under some other legal rule.

This means that, no matter which law firm you hire, the lawyers operating within that law firm will practice attorney-client privilege right from the get-go. If an attorney does not practice attorney-client privilege, they could be disbarred and face other major penalties.

Is Attorney-Client Confidentiality a Legal Necessity?

Attorney-client confidentiality is not a legal necessity in the same way that attorney-client privilege is. However, it is practically a necessity in that no qualified attorney would have a client base or reputation for success without it.

Remember, attorney-client confidentiality is an ethical rather than an evidentiary principle that, while important, is slightly more flexible and open to interpretation than its counterpart.

Contact Schwartzapfel Lawyers Today

Learning the differences between attorney-client privilege and confidentiality is the first step to fully understanding your rights and options as a legal client. Attorney-client privilege and attorney-client confidentiality guarantee that you can discuss sensitive topics about your upcoming case with attorneys like Schwartzapfel Lawyers.

When you contact us about your upcoming lawsuit or other means of legal resolution, you can trust that we will keep all sensitive information private and never betray your trust. We’ve gained the confidence of thousands of New Yorkers just like you over the years through our discretion and results. To see for yourself, check out our client testimonials page.

Still not exactly sure how attorney-client privilege or confidentiality may apply to your case? Not to worry! Simply reach out to Schwartzapfel Lawyerstoday either online or at 1-516-342-2200 for more information at no charge!

But you shouldn’t wait, as your window to file a claim and recover the money and benefits you deserve may soon close forever. Instead, act now and protect your legal rights and financial future by dialing 1-516-342-2200 and having Schwartzapfel Lawyers fight for you!

DISCLAIMER: Nothing on this page should be considered legal advice. You should seek the appropriate counsel your situation requires. For more information, call 1-516-342-2200 now!


Schwartzapfel Lawyers, P.C. | Fighting For You™™

The Attorney-Client Privilege | Nolo

Confidentiality or Attorney-Client Privilege |

Is There a Difference Between Attorney-Client Privilege and Confidentiality? | The Law Dictionary

Privilege | Wex | US Law | LII / Legal Information Institute

Attorney Client Privilege – General Counsel |

Principles of Criminal Evidence | Office of Justice Programs

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