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Introduction to Confidentiality

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A blanket term regarding the duty to keep secrets. Confidential information is generally not intended for disclosure to third persons. However, simply because a document or conversation is confidential does not necessarily mean its disclosure will be prevented. 

“Highly Confidential” 
Depending on the case, lawyers may agree to stamp documents “highly confidential” so as to note that only certain key players in a case should have access to such sensitive documents. Lawyers sometimes agree with one another to mark “Highly Confidential” documents which contain personal information, such as social security numbers or bank account numbers. 

“Privileged information”
Privileged information is confidential information that can never be disclosed, whether that information be testimonial or documentary. Privileges are enacted by federal or state statute. 

The “holder” is the party who is entitled by statute to invoke a privilege doctrine. In the context of the attorney-client privilege, it is the client who “holds” the privilege, and not the attorney. Therefore it is the client’s decision whether to invoke the privilege when it comes to revealing confidential communications with an attorney, or whether to waive the privilege and allow for disclosure. 

Verbal statements, whether they are written or oral, are considered “communications” when analyzing privileges.

“Confidentiality” is a broad term that comprises a number of legal doctrines related to a lawyer’s duty not to reveal secrets. Among those doctrines are the attorney-client privilege, the work product doctrine, the spousal privilege, the psychiatrist-patient privilege, and the priest-penitent privilege. 

A prevailing theory in the law is that it is more important to keep certain information confidential in order to preserve certain relationships – such as those of a client and her attorney – than it is to mandate that all relevant evidence be available to the opposition. Relationships that are considered to have legal importance would be hurt if there were no guaranteed confidentiality rules. 

We will look closely in this chapter at the attorney-client privilege and the work product doctrine, both of which play a significant role in shaping the discovery process in litigation. 

Simply because a document is marked “highly confidential” does not mean that it is protected by one of the privilege doctrines. A “highly confidential” marking might mean that only certain key players involved in a case are authorized to study a document. Sometimes, in litigation, a “highly confidential” marking is meant to convey that the document is “for the opposing lawyers’ eyes only.” By agreement with one another, lawyers involved in the discovery process usually attempt to limit the availability of certain documents that contain private information, such as those with bank account information or social security numbers, to only a few people involved in a case. 

Attorneys are especially sensitive when it comes to producing documents that contain personal information. Unless they can invoke one of the aforementioned privilege doctrines, however, a lawyer will have to produce all of the documents that are demanded in discovery or by a subpoena. To account for the fact that a large number of people might have access to sensitive documents, lawyers from both sides of a case often agree to mark documents of special sensitivity “highly confidential” and allow only certain individuals to peruse them. 

There are several practical differences between “confidential” information and “privileged” information. The use of privileged information is not only inadmissible at trial – it is not even discoverable. Also, an objection on “privilege” grounds entitles a lawyer to tell his client not to respond to a question at a deposition. Information that is merely “confidential,” however, must be turned over in response to a discovery request and can be introduced in court as evidence. 

In order to determine whether a privileged relationship exists, we first look to laws established by legislatures or rulings upon the law by the courts. If there is any doubt among attorneys, the judge determines whether or not a privilege exists. This is made very difficult sometimes because if the actual communication is revealed in court, then the privilege is inherently broken. Therefore, the judge often is asked to accept a claim of privilege on its face. As an alternative, a judge can ask to see the information in camera (in private rather than in open court) so that he or she may determine privately whether the information is privileged. 

Here’s a list of questions that can help determine whether a piece of evidence, be it documentary or testimonial, is protected by a privilege: 
1) Does a relationship the legislature and courts have aimed to protect exist?
The first issue is whether the parties between whom the communication was made are attorneys and their clients, husbands and wives, or psychiatrists and patients or whether they share any other relationship between whom privilege exists. Again, the legislatures and courts of the relevant jurisdiction will have delineated which relationships are potentially protected by a privilege.

In determining if there is a protected relationship, courts look to the intent behind a communication. Sometimes two individuals who never even met prior to their initial communication enjoy a protected relationship! Take, for example, a person who confides in a stranger attorney for the purpose of obtaining legal advice. Even if the person and the attorney had no prior relationship, and even if the client had not formally retained the attorney, and even if the lawyer was not expecting compensation for his advice, and even if the lawyer refuses to represent the client – they still might enjoy a protected relationship. Again, this is simply because the person imparted information to the attorney for a purpose that the law deems worthy of protection.

2) Is there a communication? 
Statements, whether they are written or oral, are considered “communications” for purposes of analyzing privileges. However, generally, writings (such as letters, documents, or corporate minutes) which were not originally considered confidential will not be protected just because they are turned over to a lawyer before discovery. 

3) Was the communication confidential? 
A communication must have been imparted in confidence (intended to be kept secret) if it is to be privileged. There is usually a presumption that parties in a confidential relationship make communications in confidence. This presumption can be rebutted by showing that an “inessential third party” was present when the communication was made, or that circumstances indicate that the party claiming the privilege did not care about privacy. 

EXAMPLE: If a famous client, prior to consulting her attorney, goes on national television and “spills her guts” on a popular talk show, we would presume the same information imparted to the attorney could not be reasonably considered confidential. The client might later regret having imparted confidences on the national stage, but that regret would probably not save the client’s information from being discoverable in litigation or from being admissible in court.

Special problems exist when third parties who are unknown to the communicator intercept confidences. What do we do about eavesdroppers? A minority of courts do not allow eavesdroppers to testify as to the overheard communication, but most do. The eavesdropper might be called by the party interested in uncovering the confidential communication to testify as to the substance of the communication. 

However, the presence of employees, agents, or assistants who help the protected relationship function properly does not spoil the privilege. For example:

Lawyer Mayson meets with a prospective client, Donna Andover, who is expecting her husband to divorce her. Mayson brings his paralegal to the meeting in order to take notes. The communication between Donna and Mayson will still be privileged even though there is a third party present. The purpose of including the paralegal in the room during the meeting is to facilitate the representation – his inclusion is not akin to that of a mere eavesdropper. Therefore the privilege is not broken. 

4) Is the Holder asserting the privilege? 
Only the holder or someone authorized by the holder may waive or assert a privilege (although a judge may invoke the privilege on behalf of an absent holder). This “holder” is the individual the privilege is designed to protect (the client, the patient, or the spouse). The “non-holding” party to a privilege (such as the lawyer, priest, psychiatrist) is not entitled to assert the privilege for himself, though he is usually required to assert it on behalf of the holder when revealing the information would be detrimental to the holder. 

5) Was the privilege waived? 
The holder waives a privilege when he fails to assert it when he has the opportunity, or when he voluntarily reveals a significant part of the privileged communication to non-privileged individuals. Upon waiver, only the actual communicated information loses protection – other communications remain protected. 

6) Are there exceptions to the privilege? 
Certain communications are never protected by privilege, such as communications intended to advance or perpetrate a crime or fraud. Also, if a lawyer is suing a client for a fee, their communications can be revealed so that the suit can be resolved properly.

EXAMPLE: Sal Slivovich calls up his attorney and tells him he’s got a “deal you can’t refuse” regarding a big fee for driving a van filled with “funky stuff” across the border, no questions asked. This communication will not be privileged, even though it is between an attorney and his client, because it constitutes a communication intended to perpetrate a crime.