Attorney Client Privilege (ACP) vs.

Duty of Con dentiality (DoC)

Attorney Client Privilege Duty of Con dentiality

ACP prevents disclosure of con dential communications between an DoC prevents disclosure of ALL information relating to the client’s
attorney and the client (or either of their respective agents) made for the representation/case. DoC applies in any setting.

purpose of obtaining or giving legal advice to client. ACP applies only in

proceedings. - Source of information not relevant (i.e. info doesn’t need to come from
Rule
client)

- Third party presence during communication will not defeat ACP if third - Third party’s knowledge of info doesn’t a ect DoC unless info becomes
party presence was to help further attorney-client relationship (i.e. help generally known.
client).

Any communication made between attorney & client for the purpose of Any information relating to the client’s representation regardless of:

obtaining legal advice (pre-existing documents/records not privileged) • whether it is privileged;

believed to be con dential.

• whether client asked for it to be kept con dential; and

What is
• Con dential requires that communicator take reasonable measures to • whether revealing info might harm/embarrass client.
Protected? ensure privacy. Communicator’s reasonable belief that outsiders will
not learn of communication/it was private is su cient (i.e.
eavesdropper okay).

Term Inde nite. Applies to prospective, past, and dead clients.

Yes. Attorney, agent, or client waives privilege if (1) fails to object; (2) No, unless attorney has client’s informed consent.
Waiveable?
discloses to 3rd party; or (3) info becomes public.

ACP does not apply when:

Attorney may USE or REVEAL information if:

1. Crime/Fraud: The communication by the client was made to engage 1. Client’s Informed Consent: Attorney has obtained the client’s
or assist in a future crime/fraud.
informed consent (i.e. adequately explained risks & alternatives).

2. Attorney Self-Protection: Disclosure is necessary for the attorney to 2. Implied Authority: Disclosure would (a) serve the client’s interests;
protect themselves in a dispute arising out of the attorney-client and (b) the client hasn’t expressly forbid disclosure.

relationship.
3. Death/Harm: Disclosure is necessary to prevent death or substantial
3. Former Joint Clients: Disclosure is relevant to a civil litigation dispute bodily harm

between former joint clients of the attorney.

4. Financial Harm: Disclosure can prevent/mitigate/rectify substantial
4. Competency/Intent of Deceased Client: Disclosure of communication nancial injury to another if attorney’s services were used in
Exceptions is needed as evidence regarding the competency or intent of a furtherance of the nancial injury.

deceased client’s will or inter-vivos transfer. 5. Attorney Self-Protection: Attorney needs disclosure to defend self in
dispute about attorney’s conduct.

6. Obtaining Legal Ethics Advice

7. Con icts of Interest: Disclosure is needed to detect & resolve

con icts of interests b/c of change of employment, merger, or sale of
practice ONLY IF disclosure doesn’t compromise ACP & prejudice
client in any way.

8. Comply w/ Court Order or Law

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Attorney Client Privilege (ACP) vs. Duty of Con dentiality (DoC)

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