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The duty of confidentiality places ethical restrictions on a lawyer’s disclosure of information related to client representation. Almost every state’s ethics rules contain provisions for the duty, which is based on the ABA Model Rule 1.6. The scope of the duty is broad, with lawyers generally not permitted to disclose confidential information unless expressly authorized or required by law, except where it can be shown that the disclosure would not violate any legal, professional or ethical obligation.

Confidentiality obligations typically stem from contracts, or implied terms in the lawyer-client relationship. For example, most confidentiality agreements require the disclosure of confidential information only if it is a matter of public record or otherwise disclosed to the public. Likewise, confidential information that is not secret in the local community or in the trade, field or profession to which it relates is protected by the duty of confidentiality. Thus, information that is disclosed in a newspaper article about a criminal conviction or a secret marriage is not protected by the duty of confidentiality.

In general, the duty of confidentiality is based upon utilitarianism and the principle that solicitors should respect their clients’ privacy and be mindful of their human dignity. It is also a reminder of the obligation of loyalty that solicitors owe to their clients. In addition, the maintenance of confidential relationships between solicitors and their clients promotes frank communication and fosters public confidence in the work of solicitors.

While the attorney-client privilege and the duty of confidentiality share many similarities, they are distinct in three important ways. The duty of confidentiality applies to more than just communications between attorneys and their clients or their representatives, while the attorney-client privilege applies only to communications that are deemed to be privileged under the rule. Furthermore, the attorney-client privilege can be waived or lost in certain circumstances, and non-privileged confidential information may be subject to judicial or legislative compulsion to disclose. The duty of confidentiality, on the other hand, is not subject to waiver or loss and it applies in all situations. It is important for clients to understand the differences between confidentiality and privilege so that they can protect their own interests.

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