To perform their roles effectively, attorneys have to be party to various types of sensitive information pertaining to clients and their cases. The common law doctrine of attorney-client privilege, as well as a contractual duty of confidentiality, oblige legal practitioners to protect the privacy of this information.
As noted in a De Rebus article, these two concepts work together to “…ensure the proper functioning of the South African legal system, which is dependent on freedom of communication between legal practitioners and their clients.”
So how does attorney-client privilege differ from the duty of confidentiality, and what does it protect?
Attorney-client privilege defined
Attorney-client privilege is a legal privilege that enables attorneys to keep their communications with their clients secret. It’s asserted in the face of any legal demand for this information – for example, a discovery request or a demand that an attorney testify under oath.
Privileged communications cannot be used by an opposing legal team in the pre-trial discovery process or as evidence or testimony in a trial, unless the client waives their right to the privilege.
When attorney-client privilege is enforceable
An important caveat applies to enforceable attorney-client privilege. The rule applies to confidential communications between an attorney and their client when it is made for the purpose of providing and receiving legal advice, and not in support of fraud or a crime.
As a fictional example, John meets with his attorney to get legal advice. He asks about the penalties imposed for selling rhino horn and ivory on the black market. The attorney provides the information. The conversation is privileged. John only sought advice regarding fines and jail time.
However, if John asked his attorney for tips on how to destroy evidence or launder the proceeds of the illicit sales, the communications would not be protected by attorney-client privilege because destroying evidence and laundering money are criminal offences.
What is attorney client confidentiality?
Attorneys’ duty to protect client confidentiality applies more broadly, and isn’t quite the same thing.
It’s an ethical and often contractual duty not to reveal information relating to the representation of a client without the client’s informed consent. It also obliges lawyers to take reasonable steps to prevent unauthorized disclosure or access to this information.
Like other businesses, legal firms are also subject to South Africa’s Protection of Personal Information (POPI) Act. This obliges them to take all reasonable steps to protect individuals’ personal information from unauthorised collection, retention, use or distribution.
Unlike attorney-client privilege, which is exerted only when there are legal demands for information, the duty to uphold confidentiality is on-going. It outlives the attorney-client relationship and persists even after the death of a client.
An attorney who fails to uphold the duty of confidentiality may be sued for damages.
However, confidential information can be used against a client in legal proceedings, whereas privileged information – which by nature is also confidential – cannot, unless so ordered by a court of law.
Whereas attorney-client privilege is absolute, specific exceptions apply to the duty of confidentiality. For example, an attorney may be permitted or required to disclose a client’s confidential information, without the client’s consent, for these purposes:
- to prevent reasonably certain death or substantial bodily harm
- to prevent a client’s crime or fraud that is “reasonably certain” to substantially injure another’s property or finances
- to “prevent, mitigate, or rectify” a “reasonably certain” substantial property or financial injury to another
- to obtain ethics advice
- to establish a claim or defense on behalf of the lawyer
- to comply with other law or a court order
- to identify and resolve conflicts of interest related to a lawyer’s change of employment.
Privilege upholds confidentiality
In essence, attorney-client privilege is what upholds attorneys’ duty of confidentiality in legal proceedings. It’s a rule of evidence that prevents lawyers from testifying about the contents of their oral or written communications with clients, or from being forced to do so by an opposing legal team.
When might attorney privilege be waived?
The right to privilege hinges on the principle of private one-on-one communications between an attorney and their client.
For example, if a client – let’s use the name Thandiwe – consults her lawyer about punitive tax penalties imposed on her by SARS, all shared information is confidential and the privilege rule automatically applies.
Even if the conversation were secretly recorded or important documents were leaked, they would not be admissible as evidence in court.
However, if Thandiwe is accompanied by her tax advisor, chooses to discuss her case with her attorney in public, or relates the conversation with her attorney to a third party, she has no reasonable expectation of confidentiality and the attorney privilege rule falls away.
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