If an attorney-client relationship has been formed between a client and their attorney, the attorney will owe the client a fiduciary duty to act in their best interests and a duty of confidentiality concerning information learned during the course of the representation. Further, their communications will be protected by the attorney-client privilege.
Forming an Attorney-Client Relationship
An attorney-client relationship forms when a lawyer agrees to provide legal assistance to a client who is seeking their services. An attorney-client relationship may also be formed if the client evidences an intent that the lawyer represents them, and the lawyer knows that the client is reasonably relying on them to provide representation, but fails to make clear that they do not want to undertake the representation. Additionally, an attorney-client relationship is formed when a court appoints a lawyer to represent a client.
Duty of Confidentiality
Once an attorney-client relationship has been formed, the lawyer owes an ethical duty of confidentiality to the client. The lawyer cannot reveal any information relating to their representation of the client unless the client gives their informed consent for the lawyer to do so, or the lawyer has implied authority to reveal the information in order to carry out their representation of the client. The lawyer also cannot use any information learned during the course of the representation to the disadvantage of the client, even after the representation has ended.
The duty of confidentiality is broader than the attorney-client privilege and applies in every situation where the attorney-client privilege does not. The duty of confidentiality applies to all information that the lawyer learns during the course of their representation of the client, not just to their communications with the client. Thus, the information does not have to come from the client to be covered by the duty of confidentiality. Additionally, the lawyer is bound by the duty of confidentiality, even if the client has not asked the lawyer to keep the information private.
The attorney-client privilege is similar to the lawyer’s ethical duty of confidentiality, but the two differ in some important ways. While the duty of confidentiality prevents a lawyer from voluntarily revealing information relating to their representation of a client, the attorney-client privilege prevents a court or the government from compelling the lawyer to reveal confidential communications between themselves and a client that were made for the purpose of obtaining or providing legal representation. Further, unlike the duty of confidentiality, the attorney-client privilege only applies to communications between the lawyer and the client and excludes information that the lawyer learns from a source other than the client (or the client’s agent) or from evidence in the case. Additionally, the attorney-client privilege only covers the disclosure of information. Unlike the duty of confidentiality, the attorney-client privilege does not prevent an attorney from using information covered by the privilege. The attorney-client privilege also covers preliminary conversations between the lawyer and client leading up to the formation of the attorney-client relationship, even if no relationship ever develops.
If you have further questions about the attorney-client relationship, a lawyer, can help.