In most common law countries the duty of confidentiality requires that a lawyer must respect the confidentiality of his client’s matters. Any information that a lawyer receives from his client may be confidential, and must not be used or disclosed in ways not authorised by the client. This, in essence, is Duty of Confidentiality of lawyers.
Confidentiality is not synonymous with privilege. All privileged communications are, by definition, confidential. But not all confidential information is privileged. The privileged communication protection only works when a client has made a specific disclosure to the lawyer. However, duty of confidence includes other information the lawyer may find out otherwise about the client as well while conducting the client’s matters. For instance, if a third party discloses some information about a client to a lawyer, he has a duty to keep such information confidential though it is not a privileged communication.
Justification of Confidentiality
Confidentiality is largely designed to enable a client to communicate the truth to his lawyer so that effective representation is possible without the client having to be afraid of the lawyer. The duty of confidentiality is also intertwined with the lawyer’s duty of loyalty to the client. A failure to respect confidentiality undermines the client’s confidence that the lawyer is acting solely in that client’s best interests.
If there was no duty of confidentiality, most clients will be in a terrible dilemma to decide which information they need to disclose to the lawyer and what they should keep with themselves. This would have seriously jeopardized the quality of representation.
In the US case of People v. Belge, a lawyer who discovered a deadbody based on privileged information received from his client and did not report the same to legal authorities was being prosecuted for failure to comply with certain laws by making the disclosure claimed Duty of Confidentiality as a ground for a lawyer not being required to make such declaration. The argument of the accused lawyer was accepted by the court as it found immense importance in preserving the sanctity of privileged communication especially when it is intended to protect the right against self incrimination. This illustration emphasizes how important the duty of confidentiality can be in the scope of a constitutional democracy.
Important features of Confidentiality
Exceptions to Duty of Confidentiality
• the client authorises disclosure
• here you are permitted or compelled by law to disclose the information
• to avoid the commission of a serious offence
• the information has lost its confidentiality
• to prevent serious physical harm to someone – (this kind of a situation justifies breach in case of doctor-patient privileges, which is analogous for this specific purpose – for instance in Doctor X v. Hospital Y)
Confidentiality Fetish – Abuse of the Duty of Confidentiality
In the USA, the Securities and Exchange board has proposed many times that Companies should be required to make a mandatory disclosure every time a lawyer withdraws from a company because legal measures suggested by him have been ignored – leading to illegality. However, lawyers shot down the proposal by citing lawyer-client communication privilege which would be compromised by such noisy withdrawals. A noisy withdrawal in such circumstances is a requirement in the profession of accountants. However, lawyers manage to avoid application of this rule citing duty of confidentiality even in India.
Corporate investigations: While this is not prevalent in India, it may be a used under Indian law as well. When a corporate finds itself in a situation where there is a serious allegation which should be investigated, it simply hires lawyers to conduct that investigation. In normal course, the evidence and information collected by such an investigator can be accessed by courts and law enforcement authorities if they wish – but in case of an advocate being a corporate investigator – he is spared from such jurisdictions because of Duty of Confidentiality. This position is misused by many corporations to keep information away from public knowledge.
It is important to keep a balance between Duty of Confidentiality and public interest in certain information. While in the USA abuse of this confidentiality points out the follies of taking this duty to an extreme, we can observe the opposite extreme in India as there is little awareness amongst the clients about their right to privileged communications and the duty of their lawyers towards them to keep client information confidential.
For a lawyer, it is a very important duty and also a tool if used in mutual benefit of lawyer and the client.