St. Denis & Davey, P.A.

Legal Malpractice Issues

Is confidentiality between attorney and client absolute?

| May 4, 2018 | Professional Malpractice Law |

An important part of the attorney-client relationship in Florida, the U.S. and throughout the world is the rule of confidentiality of information. It says that a lawyer should have full and informed consent from the client before disclosing information related to the client’s representation. 

In response to the recent FBI raid on the offices of President Trump’s personal attorney, The Washington Post quoted the U.S. leader as saying “Attorney-client privilege is dead.” Is that true?

In actuality, there is no absolute protection with any such legal privilege. The confidentiality privilege encourages trust between attorney and client and provides the attorney with the information needed to effectively represent the client.

While its purpose is to keep the scales of justice balanced by ensuring a fair court system, the rule cannot be used to circumvent the system by hiding criminal proceedings. This component of the rule is known as the crime-fraud exception, which says that exchanges with a lawyer that are meant to aid in the commission of crimes are not protected.

To be clear, a client can certainly speak to an attorney about their role in criminal acts and this communication is indeed privileged and protected. What a client cannot do is use conversations with a personal attorney to help commit future or ongoing crimes. Furthermore, clients should know that the only information that is protected by the rule are those communications aimed at obtaining legal advice.

The American Bar Association offers another instance in which the confidentiality rule does not apply, which is when another’s life or physical injury is in jeopardy or will be in the future. In these instances, attorneys may disclose information necessary to prevent harm.

The confidentiality principle is supported by related regulations protecting attorney-client privilege and the work product doctrine. These rules shield an attorney from being legally compelled to testify or produce evidence against his client. The confidentiality rule also applies to all information, no matter where it comes from, that relates to the representation of the client.