Legal confidentiality Confidentiality

lawyers required law keep confidential pertaining representation of client. duty of confidentiality broader attorney–client evidentiary privilege, covers communications between attorney , client.

both privilege , duty serve purpose of encouraging clients speak frankly cases. way, lawyers can carry out duty provide clients zealous representation. otherwise, opposing side may able surprise lawyer in court did not know client, may weaken client s position. also, distrustful client might hide relevant fact thinks incriminating, skilled lawyer turn client s advantage (for example, raising affirmative defenses self-defense)

however, jurisdictions have exceptions situations lawyer has reason believe client may kill or injure someone, may cause substantial injury financial interest or property of another, or using (or seeking use) lawyer s services perpetrate crime or fraud.

in such situations lawyer has discretion, not obligation, disclose information designed prevent planned action. states have version of discretionary disclosure rule under rules of professional conduct, rule 1.6 (or equivalent).

a few jurisdictions have made traditionally discretionary duty mandatory. example, see new jersey , virginia rules of professional conduct, rule 1.6.

in jurisdictions lawyer must try convince client conform or conduct boundaries of law before disclosing otherwise confidential information.

note these exceptions not cover crimes have occurred, in extreme cases murderers have confessed location of missing bodies lawyers police still looking bodies. u.s. supreme court , many state supreme courts have affirmed right of lawyer withhold information in such situations. otherwise, impossible criminal defendant obtain zealous defense.

california famous having 1 of strongest duties of confidentiality in world; lawyers must protect client confidences @ every peril himself [or herself] under former california business , professions code section 6068(e). until amendment in 2004 (which turned subsection (e) subsection (e)(1) , added subsection (e)(2) section 6068), california lawyers not permitted disclose client commit murder or assault. supreme court of california promptly amended california rules of professional conduct conform new exception in revised statute.

recent legislation in uk curtails confidentiality professionals lawyers , accountants can maintain @ expense of state. accountants, example, required disclose state suspicions of fraudulent accounting and, even, legitimate use of tax saving schemes if schemes not known tax authorities.

history of english law confidentiality

the modern english law of confidence stems judgment of lord chancellor, lord cottenham, in restrained defendant publishing catalogue of private etchings made queen victoria , prince albert (prince albert v strange).

however, jurisprudential basis of confidentiality remained largely unexamined until case of saltman engineering co. ltd. v campbell engineering co. ltd., in court of appeal upheld existence of equitable doctrine of confidence, independent of contract.

in coco v a.n.clark (engineers) ltd [1969] r.p.c. 41, megarry j developed influential tri-partite analysis of essential ingredients of cause of action breach of confidence:

the law in current state of development authoritatively summarised lord goff in spycatcher case. identified 3 qualifications limiting broad general principle duty of confidence arose when confidential information came knowledge of person (the confidant) in circumstances had notice information confidential, effect in circumstances should precluded disclosing information others. first, once information had entered public domain, no longer protected confidential. secondly, duty of confidence applied neither useless information, nor trivia. thirdly, public interest in preservation of confidence might outweighed greater public interest favouring disclosure.

the incorporation domestic law of article 8 of european convention on human rights human rights act 1998 has since had profound effect on development of english law of confidentiality. article 8 provides has right respect private , family life, home , correspondence. in campbell v mgn ltd, house of lords held daily mirror had breached naomi campbell’s confidentiality rights publishing reports , pictures of attendance @ narcotics anonymous meetings. although lordships divided 3–2 result of appeal , adopted different formulations of applicable principles, there broad agreement that, in confidentiality cases involving issues of privacy, focus shifted nature of relationship between claimant , defendant (a) examination of nature of information , (b) balancing exercise between claimant s rights under article 8 , defendant s competing rights (for example, under article 10, free speech).

it presently remains unclear extent , how judge-led development of partial law of privacy might impact on equitable principles of confidentiality traditionally understood.