Speaker 1: Hi everyone, I'm attorney Aiden Durham with 180 Law Co. in Colorado and you're watching All Up In Yo' Business. On this episode of All Up In Yo' Business, I'm going to talk about attorney-client privilege and confidentiality and explain what they mean and how they may apply to you if you are working with a lawyer. But first, don't forget to like, subscribe, and share and check the description for links to additional information and resources. Okay, so this video was inspired by this tweet. Now, this really got the lawyer community going on Twitter. For us, this is a huge, huge no-no. And so it got me thinking about how most normal non-lawyer people probably have no idea why this is such a big deal and most probably don't understand how confidentiality and privilege works in attorney-client relationships. But it is really important because something like this could potentially completely ruin a case, like completely ruin it. This could be really bad. The first thing you should understand is the difference between attorney-client privilege and attorney-client confidentiality. Both concepts help to protect our clients' interests and are meant to encourage honesty and open communication between us and our clients, but they serve very different purposes. Very simply put, attorney-client privilege stems from rules of evidence, whereas confidentiality stems from rules of ethics. But there's much more to it than that. So let's start with confidentiality. Every state has rules of professional conduct that apply to lawyers who are licensed in that state. These are ethical requirements we must abide by, kind of like do's and don'ts for how to be a lawyer. And if we don't follow these rules, we can get in a lot of trouble, including just losing our licenses. Most states fashion their professional rules of, or their rules of professional conduct, from the ABA, the American Bar Association. And rule 1.6 of the ABA's model rules of professional conduct tell us about our duties of confidentiality. It says, a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or disclosure is permitted by paragraph B. So what this tells us is that we cannot reveal any information relating to our representation of a client except in a few limited circumstances. And when I say we can't reveal any information, I mean any information. Even the fact that an attorney is representing you in a legal matter is confidential. If we're, if I'm representing a famous person, I can't tell any of my friends or family that I'm even working with that person, let alone give away specific details about their case. So what are those exceptions? When can we reveal certain confidential information about a client? First off, if we get informed consent. Informed consent is not just consent. It's not enough if we just ask you for your permission to disclose confidential information. We have to, you know, wherever appropriate, explain the potential risks and any alternative courses of action which may impact your decision to give us that consent. Or we can do it if the disclosure is impliedly authorized. I kind of call this like the common sense exception. Let's say you want to sue somebody because they owe you money, so you hire an attorney to help you. When the attorney files the complaint with the court or, you know, sends a demand letter to the other party, that's technically a disclosure of confidential information because now everybody knows that you have an attorney representing you and they at least know some of the minimal details related to your legal claim. But obviously we have to do this in order to help you. So that's kind of where that implied authorization comes in. So those are just two of the more common situations where lawyers will reveal confidential information. But let's take a look at the third. So it gives the exception for if disclosure is permitted by paragraph B. Let's take a look at paragraph B. It says a lawyer may reveal information relating to the representation of the client to the extent the lawyer reasonably believes it's necessary. Let's take a moment to appreciate a few things. First of all, it says a lawyer may reveal information. The word may is important here. It doesn't say shall or must. It says may. That means that we can reveal confidential information in certain situations, but we still do not have to. Even where it's permitted, it's not required. It's also important to make note of the part that says to the extent the lawyer reasonably believes necessary. That means even if we do choose to disclose confidential information, we're still bound to disclose only as much as we reasonably believe is necessary. So we can't go on a tirade blabbing about everything just because we're allowed to disclose some confidential information. But let's look at those exceptions. The first is to prevent reasonably certain death or substantial bodily harm. So we can, but again we don't have to, reveal confidential info if we think it's necessary to prevent death or bodily harm, or to prevent the client from committing a crime or a fraud, or to prevent other kinds of injury to another person. But still, it's in limited situations and limited circumstances. To secure legal advice about the lawyer's compliance with these rules. In other words, sometimes there are ethical gray areas, and we're not always sure if we are permitted or required to do something. So we can disclose confidential information to the extent necessary for us to get advice about our own legal requirements, or to establish a claim or defense on behalf of the lawyer, or to respond to allegations concerning the lawyer's representation of the client. In other words, if a client sues us for malpractice, we can disclose information to the extent necessary to defend ourselves against those claims, to comply with law or court order, or to detect and resolve conflicts of interest. This basically just means that like if we're working in a law firm, we can disclose confidential information to other lawyers in the firm for purposes of avoiding conflicts of interest. There's kind of more to it, but that's the gist of it. And then finally, we see this last part, which says that a lawyer shall, that shall, not may, make reasonable efforts to prevent unauthorized disclosure of or access to a client's confidential information. So what all this means is that all information, all information relating to a lawyer's representation of you has to be kept completely secret and confidential at all times with limited exceptions. But it's not just our current clients that get this benefit of extreme secrecy. A lot of this extends to former clients and even potential clients. If we take a rule, a look at rule 1.18b, we see that a lawyer shall not use or reveal information from a prospective client except as permitted by rule 1.9. And then if we pop over to rule 1.9, which applies mostly to former clients, it basically says that we can't use any information in a way that would be contrary to our former client's interests, nor can we reveal any information except as we would otherwise be permitted with respect to a client. In other words, all of the restrictions in rule 1.6. So put very simply, us lawyers are prohibited from disclosing any information about a potential client, current client, or former client with a few exceptions. Outside of those exceptions, everything is top secret. Important side note that I'd like to make here, I beg you guys, please, please keep this in mind next time you want to ask a lawyer a quick question or get some free legal advice or next time you feel like, oh, I don't know, complaining because the lawyer doesn't offer free consultations. Solely by speaking with you or responding to a question via email, we now have ethical requirements with respect to you for the rest of eternity. And we're potentially losing out on other clients because now we can't work with anybody else if doing so would place you at a disadvantage, even if you never hired us. All right, so that's confidentiality. Now let's talk about privilege. I started off by explaining that confidentiality is rooted in ethics, whereas privilege is rooted in evidence. Whereas confidentiality rules prohibit our disclosure of client information, privilege prohibits the forced disclosure of your communications with your lawyer. Just like the rules of professional conduct vary from state to state, rules related to attorney-client privilege are also going to vary by jurisdiction. But in general, attorney-client privilege prevents attorneys from testifying or being forced to testify at trial and disclose statements made to their clients. Privilege applies when four elements are met. First, there's a communication made between privileged persons in confidence for the purpose of seeking legal advice or legal assistance. So privilege only applies if there is a communication. That part's important. It doesn't matter if it's written or oral communication or even physical gestures, but the privilege protects only the communication, not the information communicated. This is an important distinction between privilege and confidentiality. Your information is confidential, but only your communications are privileged. So let's put this in some context and pretend you're in the middle of a lawsuit. In most legal proceedings, there will be a phase called discovery. Discovery is where both parties get a chance to obtain evidence from the other party, and a common thing is for one party to request basically any documents or records which concern the legal matter at hand, and the party to which the request is made is legally obligated to provide any information which may be relevant to the other party's case unless there are legit grounds for doing so. So this could then presumably include email exchanges between the lawyer and the client. I mean, what better way to get insight into the other party's case? But luckily, thanks to attorney client privilege, those communications are protected and do not have to be provided in discovery. However, this attorney client privilege can be waived, and typically it can only be waived by the client. So let's go back to that tweet that inspired this whole thing. This person's client forwarded every email conversation they've ever had about the case to the client's friend. You may be wondering, so what? My friend is a lawyer too, so I wanted her input on my case. I wanted to make sure she agreed with my lawyer's advice. What's the big deal? No, no, no, no. Bad move, my friend. Very, very bad move. What were the four things I mentioned that are required for attorney client privilege? A communication, of course, made between privileged persons, in confidence for the purpose of obtaining legal advice. All four things are required, not just one of them, all of them. So when the client forwards all of the email exchanges to a friend, those communications are no longer made in confidence. It's basically like the attorney and client just live streamed their entire conversation on the internet for everybody to hear. And just like that, attorney client privilege no longer applies, and those communications can potentially be used against you just like any other piece of evidence. It's important that you all understand that this is a very simplified explanation of attorney client privilege. When a communication is considered privileged and situations where privilege is waived, it's actually much more complicated than this and is going to depend a lot more on specific facts of a given situation and stuff. But the point is this. Attorney client privilege is not the same as confidentiality. Confidentiality always applies, whereas attorney client privilege can be waived. And you need to take care in making sure you don't do anything that could damage that privilege, which in a nutshell means you should never forward emails from your lawyer to somebody else, share text messages with your lawyer to somebody else, don't put your lawyer on speakerphone if you're in the room with somebody else, or do anything like that without first checking with your lawyer to make sure it's not going to somehow damage your case or damage your attorney client privilege. So to summarize, confidentiality means that all information related to your legal matter must be kept top secret, otherwise your lawyer could get in a lot of trouble. Privilege means your communications with your lawyer can't be used as evidence against you, but you can easily damage or waive that privilege, even if you inadvertently do so. Attorney client privilege and confidentiality are cornerstones in the relationship between a lawyer and a client. The whole reason these things exist is to encourage and facilitate the open communication and honesty with a lawyer. So keep this in mind in any situation where you're dealing with a lawyer. We need you to be completely open and honest with us so we can properly do our jobs. And so if you ever have a concern about confidentiality or privilege, please ask your lawyer. That's all for this episode folks. Drop a comment below, let me know what you think. And again, don't forget to check the description for links to some additional information and resources. Thank you all so much for watching. I'm Aiden Durham and I'll see you next time. Surprise. Afterthought. Aren't you glad you waited around till the end of the video? So as I was editing this, I started thinking of something else that I should have mentioned that just didn't come to mind. So the differences between confidentiality and privilege. Another one is how I was talking about privilege can be waived and is usually waived by the client. Confidentiality can't really be waived. You can consent, like I talked about, to your lawyer disclosing confidential information. But even when you give that consent, it's typically going to be specific to whatever piece of information you're talking about. You giving informed consent that your lawyer can disclose a particular piece of information doesn't damage the confidentiality of everything else. Whereas privilege can potentially do that. And the other thing is that you can't damage your own confidentiality. You don't have, as a client, you don't have any obligations to keep your own information or your own communications with your client confidential or the information confidential. So you are free to, as much as you want, to talk to your friends or your family about your case. You can tell whatever kind of information you want. You can even say, my lawyer told me this, or my lawyer wants to do this. Because again, that's the information that's in the communications. And the information isn't privileged. The communications themselves are privileged. So I hope that helps to clear a little bit up because I started thinking that people might start getting concerned about damaging confidentiality in the same way that you could damage privilege. And that's just not really the case. All right. I'm Aiden Durham, and I'll see you next time.