The attorney-client relationship is fundamentally built on trust and confidentiality. Conversations held between an attorney and their client are private and cannot be disclosed to outside parties without the client’s informed consent.
Each state has established laws that ensure the confidentiality of the client-attorney relationship, often outlined in its code of ethics. For instance, the American Bar Association’s Model Code of Ethics 1.6 clearly states that an attorney cannot reveal information pertaining to the representation of a client. This encompasses any communication exchanged between the attorney and their client.
The principle and ethical standard of confidentiality is essential as it encourages clients to share even the most private and potentially damaging information without fear of it being used against them. Moreover, by preventing outside parties from compelling an attorney to disclose client information, attorneys can accurately and confidently prepare legal defenses or arguments to benefit the client.
When Does Attorney-Client Confidentiality Exist?
Most discussions with your attorney are protected and not subject to disclosure under specific circumstances:
- The attorney is acting in a professional capacity when advice is requested.
- The client intends for the communication to remain confidential.
- The client keeps the information confidential and does not share it with others.
This confidential information can even encompass admissions of serious crimes. If an attorney learns about criminal acts that were committed while acting in their professional capacity, they are bound to keep this information private, risking serious consequences if they disclose it. Notably, this privacy persists even after legal proceedings have concluded.
However, if a client is merely seeking casual advice—for example in a social setting—the privilege may not apply, particularly if others are present or can overhear the conversation.
What Happens if an Attorney Discloses Confidential Information?
If an attorney discloses confidential information—whether intentionally or accidentally—it can severely impact the client’s legal position. Such a breach can expose sensitive information to opposing parties, potentially harming the client’s bargaining leverage or case. In situations where a client experiences an unfavorable verdict due to an attorney’s unethical disclosure, they may appeal based on this breach. If it is established that the attorney’s conduct compromised the client’s right to a fair trial, a claim of legal malpractice may arise.
Importantly, if sensitive information is revealed to an opposing party—even if the disclosure is intentional—those parties cannot utilize that evidence against the client.
Are There Exceptions to the Confidentiality Rule?
When an attorney discloses confidential information without a client’s consent and that results in material harm (especially financial), it typically qualifies as legal malpractice. However, some exceptions allow for disclosure, including:
- The intent to prevent substantial bodily harm or death (e.g., when a client expresses plans to assault someone)
- A court order mandating the attorney to reveal certain information
- Preventing a client from committing a crime that could cause financial harm to another party
- When a client reveals his intention to bribe a public official
- Situations involving multiple parties where attorney-client privilege cannot be invoked against each other
The fraud exception is the most common among these, wherein an attorney is requested by a client to facilitate or conceal criminal intent that could lead to financial or bodily harm. The components of this exception are:
- The client seeks legal advice intending to commit a crime or fraud
- The client commits a crime following legal advice received from the attorney
- Communications between the client and attorney were meant to further the crime’s commission
- These communications pertain to ongoing or future crimes rather than past actions
An attorney who violates the principle of attorney-client confidentiality may face serious consequences, including disbarment. To prove a claim of legal malpractice, your legal malpractice attorney must establish that a different outcome in the original case could have reasonably been expected had it not been for the attorney’s breach.
Retain a Legal Malpractice Attorney from Burns and Jain
Legal malpractice claims are a unique and complex area of law. By choosing a legal malpractice attorney from Burns and Jain, you can ensure that your claim will be thoroughly investigated, giving you the best chance for an accurate assessment and a potential cause of action.
Call 617-227-7423 for a free consultation.