Confidentiality vs Attorney-Client Privilege

Can an attorney share information I tell them?

If you're reaching out for representation or advice, the answer is almost always no. The things you tell us will remain private. There are limited exceptions. Most information given to an attorney likely falls into one of two related categories: Confidentiality or Attorney-Client Privilege.

Confidentiality is a rule of professional conduct

Confidentiality applies to potential clients, current clients, and past clients so long as it's to obtain representation or to seek legal advice (so a casual "Howya doin', stranger?" won't count) and it lasts even after death. A lawyer must keep confidential any information (statements, conduct, records. All of it) related to representing the client from any source. It is MUCH broader than attorney-client privilege.

Under the Iowa Rules of Professional Conduct, the only time an attorney is required to disclose confidential information is if we "reasonably believe it necessary to prevent imminent death or substantial bodily harm."

We're obviously allowed to disclose any information you explicitly authorize, or if it's to do our job and you'd obviously be ok with it. For example, if you've agreed that we should hire an orthodontist to explain how it's impossible for the bite marks on a victim to belong to you, then we obviously need to send your confidential dental records to the orthodontist.

We're also allowed to disclose any information we reasonably believe necessary:

  1. To prevent certain death or substantial bodily harm;
  2. To prevent a crime that's reasonably certain to cause substantial injury or financial costs, but only if you're relying on advice we gave you (we can't advise you on how to get away with a crime);
  3. To talk with another attorney (which in turn is protected by confidentiality and attorney-client privilege) to make sure what we're doing is ethical;
  4. To defend ourselves if you claim we violated an ethical rule; or
  5. If it's required by law or court order.

Attorney-Client Privilege is a rule of evidence

Not everything confidential is protected by attorney-client privilege.  However, everything that is protected by attorney-client privilege is also confidential.  Like confidentiality, attorney-client privilege can apply to potential clients, current clients, and past clients.  Also like confidentiality, attorney-client privilege persists after death. Though not as broad as confidentiality, it also protects messages that seek representation or legal advice. The exact scope of attorney-client privilege varies between states, but most follow the same general principles: 

  1. It protects only communication. Emails, texts, notes summarizing conversations, etc.
  2. It must be intended to be confidential. Communications which aren't really meant to be kept private, like informing you when your public trial is scheduled, aren't protected.
  3. It must be confidential. Because it protects communication between the client and attorney, the known presence of anyone else (even a family member) might waive the privilege. There are limited exceptions for necessary 3rd parties, like translators.
  4. The communication must either seek representation or advice, or occur while being represented or advised.  Some jurisdictions will not protect communications like "here's what happened--should I get legal advice?"
  5. The advice sought has to be about something the attorney is competent in. If their ad says they will not do divorces, then asking for divorce advice probably isn't privileged. 
  6. It also does not extend to communications that seek advice on getting away with a crime.
  7. Only the client can waive the attorney-client privilege. That means attorney-client privilege offers more protection for communication than confidentiality does. We can't reveal anything that's privileged, even if subpoenad to testify. Iowa's Rules of Evidence permit waiver to be done very carefully, allowing the client to make sure correspondence with counsel remains private.

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