Chapter Three
Confidentiality
In this chapter, you will learn about:
Basic principles of confidentiality
 The attorney-client privilege and the
difference between the privilege and the
ethics rules on confidentiality
 Information that is privileged or protected
by the rule of confidentiality
 How and when the privilege and the duty of
confidentiality may be broken or waived

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Chapter Three
Confidentiality (continued)
The work product rule
 How the principles and rules of confidentiality
come into play for paralegals in practice
 How to protect confidentiality of information
and records
 Special problems in maintaining confidentiality
with technology

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Confidentiality

The principle of confidentiality is based
on the notion that:
◦ an attorney must know all the facts if he or
she is to best serve the client, and
◦ that a client will not provide full disclosure
without assurance that information that may
be incriminating or embarrassing will not be
revealed outside the lawyer-client relationship.
Attorney-Client Privilege

The general rule regarding attorney-client
privilege is that a client who seeks a
lawyer’s advice or assistance may invoke
an unqualified privilege not to testify and
to prevent the lawyer from testifying as to
communications made by the client in
confidence.
If a Paralegal Receives
Privileged Documents . . .
Refrain from reviewing such materials as
soon as it is evident that they are
privileged
 Notify the sender about the materials
 Either follow instructions of the sender,
or seek a resolution of the disposition of
the materials from a court

Confidentiality in the Corporate
Setting
Special problems in applying the attorneyclient privilege exist in the representation
of corporations.
 Questions sometimes arise as to who the
‘‘client’’ is and, flowing from that, what
communications are protected.
 Different jurisdictions use different tests
to determine the application of the
privilege.

Tests to Determine Application of
the Attorney-Client Privilege
Control group test: Limits attorney-client
privilege to confidential communications
between the attorney and top
management personnel
 Subject matter test: Applies attorneyclient privilege to all corporate employees
who communicate in confidence with the
attorney for the purpose of enabling the
attorney to render legal services

Work Product Doctrine

Federal and state rules of evidence and
discovery provide for the protection of
materials prepared by lawyers in
anticipation of litigation.
Technology and Confidentiality
Consider how the following can cause
breaches in confidentiality:
 Electronic records
 Facsimile machines
 Cellular and cordless telephones
 Computers
 Electronic mail
Procedures to Protect Confidentiality
when Using Computers
Refrain from using e-mail for very sensitive
communications
 Mark all confidential e-mails as privileged
and include a statement telling the reader
what to do if the communication is
inadvertently sent to the wrong person

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Procedures to Protect Confidentiality
when Using Computers
Limit the recipients of a privileged e-mail to
those who are absolutely essential to the
privileged communication and warn
recipients not to send such
communications on to other persons.
 Consider the use of encryption software
 Consider closed networks using land-based
lines with regular clients
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