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Attorney-Client Confidentiality vs. Privilege: What is the Difference?

By Peter Danos on Thursday, April 5th, 2018
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For practicing attorneys, the ethical obligation and importance in upholding attorney – client confidentiality and attorney – client privilege cannot be understated. If broken, the attorney may subject him or herself to “disciplinary authority of [his or her] jurisdiction.”[1] However, are the concepts of attorney – client confidentiality and attorney – client privilege really the same? On its face, it appears so. According to the American Bar Association, both concepts involve “information that the lawyer must keep private and [both] are protective of the client’s ability to confide freely in his or her lawyer.”[2] In fact, law students and practicing attorneys alike often use these phrases synonymously.[3] However, despite the similarities and common understandings, the ideas and theories indicate that both concepts are very much different.

Primarily, attorney – client confidentiality is an ethical issue.[4]  ABA Model Rule 1.6, comment 2 defines confidentiality as: “[A] fundamental principle in the client – lawyer relations is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation . . . This contributes to the trust that is the hallmark of the client – lawyer relationship.”[5] Here, this privilege not only extends to an attorney giving professional advice, but to general advice and any information that pertains to obtaining legal representation.[6][7] This confidentiality remains intact throughout the entire course of the client’s representation, and even extends to after the client’s death.[8]

On the other hand, attorney – client privilege derives from an evidentiary standpoint, rooted in common law jurisprudence and local state statutes.[9] This privilege exists “to encourage full and frank communications between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy . . . depends on the lawyer’s being fully informed by the client.”[10] In general, attorney – client privilege prevents attorneys from testifying or being forced to testify at trial and disclose statements made to their clients.[11] No matter how this privilege is articulated, it is enacted when the following four elements are met: “(1) a communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining or providing legal assistance to the client.”[12] Each of these elements are briefly described below.

A communication includes oral or written assertions.[13] Interestingly, this privilege “protects only the communication, not the information communicated,”[14] and generally extends to attorneys and their clients.[15] These conversations must be made in confidence, meaning that the client only confides in the attorney.[16] Finally, the client must be communicating with their attorney with regards to their legal issue.[17]

While there is no dispute that both attorney – client privilege and attorney – client confidentiality “concern information that the lawyer must keep private,” its applications greatly differ.[18] While attorney – client confidentiality is broad in scope, attorney – client privilege is limited to evidentiary matters, and only met when four elements are met. Overall, while in practice and common understandings the differences between these two concepts may be blurred, the applicability and general ideas for each greatly differ.


[1] Model Rules of Prof’l Conduct r. 8.6 (Am. Bar Ass’n 1983).

[2] Sue Michmerhuizen, Confidentiality, Privilege: A Basic Value in Two Different Applications, Center for Professional Responsibility (May 2007), www.americanbar.org/content/dam/aba/administrative/professional_responsibility/confidentiality_or_attorney.authcheckdam.pdf.

[3] Id.

[4] Model Rules of Prof’l Conduct r. 1.6 (Am. Bar Ass’n 1983).

[5] ABA rule 1.6 Comment 2.

[6] Upjohn Co. v. United States, 449 U.S. 383, 386 (1981).

[7] Michmerhuizen, supra note 2.

[8] Model Rules of Prof’l Conduct r. 1.6(b)(1) (Am. Bar Ass’n 1983).

[9] Michmerhuizen, supra note 2.

[10] Upjohn Co., 449 U.S. 383 at 389.

[11] Micah Schwartzbach, The Attorney – Client Privilege, Nolo (2018), www.nolo.com/legal-encyclopedia/lawyers-lawfirms/attorney-client-privilege.html.

[12] Daniel Northrop, The Attorney-Client Privilege and Information Disclosed to an Attorney with the Intention That the Attorney Draft a Document To Be Released to Third Parties: Public Policy Calls for at Least the Strictest Application of the Attorney-Client Privilege, Fordham L. Rev. 1481, 1487 (2009).

[13] Id.

[14] Id.

[15] Id. at 1488.

[16] Id. at 1489.

[17] Id. at 1490.

[18] Michmerhuizen, supra note 2.

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