Page 1 of 13
Advances in Social Sciences Research Journal – Vol. 9, No. 10
Publication Date: October 25, 2022
DOI:10.14738/assrj.910.13320. Hunter, R. J., & Shannon, J. H. (2022). Assessing Confidentiality in the Lawyer-Client Relationship: A Client Perspective. Advances in
Social Sciences Research Journal, 9(10). 418-430.
Services for Science and Education – United Kingdom
Assessing Confidentiality in the Lawyer-Client Relationship: A
Client Perspective
Richard J. Hunter
Professor of Legal Studies, Seton Hall University
Adjunct Professor of Law, University of Tulsa College of Law
John H. Shannon
Professor of Legal Studies, Seton Hall University
ABSTRACT
This article will provide information on issues relating to the attorney-client
relationship and the attorney-client privilege, the duty of confidentiality, the crime- fraud exception, the work product doctrine, and other exceptions to the general
duty of confidentiality existing in the lawyer-client relationship. The article is based
on an analysis of decisional cases and selected commentaries found in law reviews
and writings of prominent legal practioners.
Key words: Confidentiality; attorney-client privilege; work product; crime-fraud
exception
OVERVIEW
Young (2022) sets the stage for the discussion of issues relating to the attorney-client
relationship and states:
“Attorney/client privilege defines the confidential relationship between a client, or
prospective client, and his or her lawyer. It’s deeply rooted in the concept of trust
and the idea that a client confronting a legal issue should be able to fully and
completely trust the lawyer whose advice they are seeking. Attorney/client
privilege means that whatever you share privately with your lawyer for the
purpose of seeking legal advice, you share in confidence. But it’s also an
agreement upon which the entire United States legal system is premised. For your
lawyer, it means they are legally prohibited from disclosing or discussing any of
your private communications with others without your permission. And for the
client, it means you should feel comfortable sharing all of the details with your
lawyer so that your lawyer can give you the best advice.”
Monforton (2022) notes that “Lawyers have a duty to keep everything a client tells them
confidential. This is an ethical and legal duty of the lawyer. The courts also respect the
confidential nature of the lawyer-client relationship during a trial. Neither the client nor the
lawyer will be asked to divulge in court what they have discussed.” The principle of
confidentiality is generally expressed as the attorney-client privilege (see Fischel, 1998; Batts,
2020).
Page 2 of 13
419
Hunter, R. J., & Shannon, J. H. (2022). Assessing Confidentiality in the Lawyer-Client Relationship: A Client Perspective. Advances in Social Sciences
Research Journal, 9(10). 418-430.
URL: http://dx.doi.org/10.14738/assrj.910.13320
The attorney-client privilege is an evidentiary privilege applied in a court of law that protects
communications between an attorney (or law firm) and the client. The privilege is “owned” or
is held by the client and gives rise to the duty of an attorney to refuse to disclose certain
confidential communications between the client and his or her or its lawyer. Interestingly, the
attorney-client privilege, like the fiduciary duty of confidentiality, has its roots in the common
law and is the product of more than four -hundred years of judicial history” (Batts, 2020, p. 1).
The privilege is not constitutionally based; rather, it is the product of both state and federal
common or case law (see Partington v. Gedan, 1992) and is generally governed by state statute.
The law firm of Smith Gambrell Russel (2022) noted that:
“The attorney-client privilege is the oldest privilege recognized by Anglo-American
jurisprudence. In fact, the principles of the testimonial privilege may be traced all
the way back to the Roman Republic, and its use was firmly established in English
law as early as the reign of Elizabeth I in the 16th century. Grounded in the concept
of honor, the privilege worked to bar any testimony by the attorney against the
client” (citing Epstein, 2001).
In Upjohn v. United States(1981, p. 389), the United States Supreme Court stated: “The attorney- client privilege is deemed fundamental to the proper functioning of our system of justice.”
The policy rationale for the attorney-client privilege is the encouragement of “full and frank
communication between attorneys and their clients. . .[to] thereby promote broader public
interests in the observance of law and administration of justice.” Giesel (2010, p. 110) noted
that “The lawyer seeking to render the best possible representation to the entity client, wishes
to obtain complete and unfettered disclosure by the individuals with whom the lawyer
communicates. The more complete the disclosure, the better counsel the lawyer can give to his
or her client....”
In Upjohn v. United States (1989, p. 389), the court also noted: “The privilege recognizes that
sound legal advice or advocacy serves public ends, and that such advice or advocacy depends
upon the lawyer’s being fully informed by the client.” McDonald (2021, p. 146) points out that:
“The attorney-client privilege is a rule of evidence, not ethics. Its scope is limited to
confidential communications between lawyer and client or the client’s authorized
representative. Moreover, the communication must be ‘made to facilitate the
provision of legal services to the client ... not intended to be disclosed to any third
party other than those to whom the client revealed the information in the process
of obtaining legal services.’”
The privilege of confidentiality is found in the American Bar Association Model Rule 1.6 (Tuoni,
1993), which states:
(a) 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 the disclosure is permitted by paragraph
(b).
Tuoni (1993, p. 459) writes that “Model Rule 1.6 enlarged the protection of client
confidentiality under the ABA Code because it applies to all information about a client ‘relating
to the representation.’” The American Bar Association clarified that Rule 1.6 provides no
Page 3 of 13
420
Advances in Social Sciences Research Journal (ASSRJ) Vol. 9, Issue 10, October-2022
Services for Science and Education – United Kingdom
exception for information that is "generally known" or "contained in a public record" (see
McDonald, 2021). The ABA adopted the position that the public filing of a document that
contains confidential information, in nearly all cases, will not convert the information contained
in that document into "generally known" information, and the normal rules of confidentiality
will still apply—although there is a significant minority view found in an opinion by the
Supreme Court of Virginia in Hunter v. Virginia State Bar, 2013).
According to Norton-Rose-Fulbright (2022): “The attorney-client privilege, if found applicable,
is generally absolute, and it applies broadly in the litigation, as well as non-litigation, contexts.”
These may include the wide breadth of civil, criminal, administrative, regulatory and
disciplinary proceedings (see Swidler & Berlin v. United States, 1998, pp. 408-409). Ellis (2017)
has noted that “The privilege applies to legal advice communicated to the client, or confidential
information communicated to the attorney by the client, even if litigation is not threatened.”
Since the attorney-client privilege is held by the client, the client has the sole authority to waive
the privilege (Olmos v. Giles, PC, 2022). However, an attorney is required to assert or invoke the
privilege whenever necessary on behalf of the client, even without an express instruction by
the client.
There are few exceptions to the privilege, discussed below. If the privilege applies, however,
compelled disclosure by the attorney is forbidden regardless of any asserted need expressed
by a third party (In re Grand Jury Investigation, 1979).
COMPARING THE ATTORNEY-CLIENT PRIVILEGE TO THE DUTY OF CONFIDENTIALITY
The duty of confidentiality arises out of the generalized fiduciary duty owed by the attorney to
the client, which is generally viewed as loyalty, and trust, and confidentiality.
In the case of Banner v. City of Flint (2004, pp. 19-20), the United States Court of Appeals for the
Sixth Circuit, in citing Hazard, Hodes, and Jarvis (2001), wrote:
“To encourage candor in an attorney-client relationship, a lawyer must maintain
confidentiality of information relating to the representation. The ethical rule
of confidentiality is closely related to the evidentiary rule of attorney-client
privilege. The difference is that confidentiality applies to virtually all information
coming into a lawyer’s hands concerning a client, and forbids virtually all
disclosures. The privilege is narrow in scope, invoked in response to an attempt to
compel testimony, where the testimony sought is about information passed
between lawyer and client. The duty of confidentiality directs lawyers not to
disclose, voluntarily or otherwise, unless an exception applies, information that
the lawyer has learned about a client, no matter where or how the information was
learned.”
Similar to the attorney-client privilege, the duty of confidentiality serves the purpose of
contributing to the existence of trust that is the bedrock of the attorney-client relationship
whereby the client is able to communicate “fully and frankly” without the threat of “legally
damaging, embarrassing or secret information being shared with others” (Ellis, 2017). As the
United States Bankruptcy Court for the Northern District of Georgia noted in In re Craig (2017):
“The lawyer’s duty of confidentiality fosters full and open communication between client and