Confidentiality and Professional Privilege
Confidentiality is the ocean; privilege is an island
Confidentiality is a broad ethical duty covering all information learned about the client's affairs, however obtained, and it survives the end of the retainer and the client's death. Privilege is a narrower evidentiary immunity held by the client, protecting confidential communications made for the dominant purpose of legal advice or litigation. Every privileged item is confidential; not every confidential item is privileged.
Concepts
- Legal advice privilege: lawyer-client communications for advice, including drafts and internal notes summarising instructions.
- Litigation privilege: communications with third parties made for existing or reasonably contemplated proceedings.
- Waiver: only the client can waive, expressly or by putting the advice in issue; inadvertent disclosure may waive unless promptly protected.
- Exceptions: consent; court order; statutory reporting; preventing serious harm or death; defending yourself against a client complaint or negligence claim.
- The crime-fraud exception: advice in furtherance of a crime or fraud is not protected.
- Third parties: agents and interpreters fall within the circle; a client's friend does not.
Traps
Assuming all facts the client tells you are privileged (facts are not); assuming a non-lawyer business adviser's notes are privileged; thinking privilege ends when the retainer ends; thinking the lawyer owns the privilege; overlooking that disclosure outside the circle can destroy confidentiality.
Worked example
A client emails you a spreadsheet of transactions and asks whether a structure is lawful. The email is privileged; the underlying spreadsheet is not, and a regulator can compel it.
Rule of thumb: test separately - 'Is it confidential?' then 'Is it a communication for advice or litigation?' Only two yes answers give privilege.