When Can a Lawyer Breach Confidentiality?

The justice system ensures that all citizens have the right to legal representation, and two of the legal concepts that enable this are attorney-client privilege and the duty of confidentiality. Essentially, an attorney may not disclose any communication with a client to anyone outside of the client’s legal team. Doing so would not only damage the lawyer’s reputation but may also lead to penalties like disbarment. However, there are some instances when it may not only be acceptable but necessary for an attorney to breach confidentiality.

Preventing Harm

One of the most important reasons a Raleigh criminal defense attorney might have for breaching confidentiality is to prevent harm to others. An attorney may not disclose information about what a client tells the lawyer he or she has done in the past, but if the client tells the attorney he or she intends to harm another person for any reason, the attorney has a duty to report it. For example, a client admits to his attorney that he killed someone several years ago. The attorney cannot disclose this information under attorney-client privilege. However, if the client tells his attorney he intends to harm a witness in a future case, the attorney has a duty to report this to the police.

Attorneys may also breach confidentiality if they discover a client has used an attorney’s services to commit a crime or further the commission of an ongoing crime, such as fraud. In the event that an attorney needs to confirm a compliance question or ethical concern about a client, the attorney has the right to breach confidentiality in seeking answers to these questions, but the attorney should only divulge the details to another attorney that are absolutely necessary for explaining the situation.

Compliance With Court Orders

Lawyers are officers of the court and must, therefore, comply with official court orders. In some cases, a judge may require an attorney to disclose confidential aspects of a case typically protected by attorney-client privilege. Some state laws may require an attorney to do this as well. Additionally, an attorney has the right to disclose confidential information to establish a claim or build a defense on the attorney’s behalf.

If a client attempts to sue a previous lawyer for legal malpractice or some other claim, the attorney has the right to defend him or herself by disclosing confidential information if necessary. It’s also important for attorneys to acknowledge the difference between information protected under the duty of confidentiality and information protected by attorney-client privilege.

Attorney-client privilege generally extends to communications between an attorney and his or her client. The attorney may not share anything the client says in privileged communication if the client expects secrecy. The duty of confidentiality applies differently; the attorney may not divulge any information about a client’s case, even after the case concludes. A court may compel an attorney to share confidential information about his or her representation of a client, but not correspondence between the attorney and the client.

Preventing Fraud

Attorneys may also disclose confidential information about a client if the information pertains to the client’s intent to commit a criminal act or fraud. For example, if a client asks an attorney to provide fraudulent evidence, destroy or alter evidence, hide assets, or tamper with a witness, the attorney has a duty to report this. Another example could be a client asking an attorney about which documents he or she should destroy to hide a criminal act. If the prosecution has any reason to suspect that such a conversation took place, they could demand the attorney divulge what the client said.

Ultimately, any conversations regarding past criminal acts will fall under attorney-client privilege, but any conversations about ongoing illegal activity or intent to commit illegal acts in the future would not. Attorneys also have a duty to correct the record if a client commits perjury, or lies under oath. If an attorney is unsure whether it is acceptable or necessary to breach attorney-client privilege or share confidential information, the attorney should consult with an experienced colleague.