Andrew Rubin, Esq.

How does confidentiality differ from attorney-client privilege? P.2

In our last post, we continued our discussion of confidentiality by looking at how it differs from attorney-client privilege. As we pointed out, confidentiality is an ethics rule and attorney-client privilege is a rule of evidence. The two are separate rules, but they are certainly related.

We also noted last time that there are certain exceptions to the general rule that confidential communications made in the course of the professional relationship between an attorney and a client may not be admitted into evidence in court. One of these exceptions is for communications made in the course of a legal service which was sought out or obtained in order to further the commission of fraud or another crime. Such communications may be introduced in court. 

A second category of exception to the general rule of attorney-client privilege is for communications which are relevant to an issue between parties who all claim through the client. Another third exception is for confidential communications which are relevant to an issue of the lawyer’s breach of duty to his or her client. In other words, a legal malpractice case involving allegations that the lawyer breached his or her professional duties might involve evidence drawn from otherwise privileged communications. Also, in cases where two or more people were represented by the same attorney, those individuals are not allowed to assert attorney-client privilege with respect to the matter of representation.

Navigating confidentiality and privilege issues is not always an easy matter, and it is important to work with an experienced attorney who knows how to protect clients’ rights in these matters. When problems do arise, it is important to consult an experienced attorney who can guide a client through the available options and who can represent the individual in protecting his or her rights, both against an attorney who poorly handled the individual’s case and in ongoing legal matters that have been compromised as a result of an attorney's mishandling.  

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