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Confidentiality Confusion

Attorney – Client Confidentiality is something that is commonly said but rarely understood. What exactly falls under the attorney – client privilege? What exactly is kept in confidence between a client and an attorney? Do attorneys adequately explain what is protected and what exceptions exist? If a potential client walks through the doors of an attorney’s office, do they understand that the attorney – client privilege applies right away? Most of society will not understand that anything that is said in an attorney’s office (with some exceptions) will remain in confidence regardless of whether or not that attorney is retained.

A lot of attorneys will discuss confidentiality during the meeting, provide a handout with the information, or just simply assume that the potential client already understands what is protected. It is difficult, however, to discuss the exceptions. For example, an attorney may find it awkward to tell a potential client that an exception to the attorney-client privilege would be if the client discloses that they are about to commit a crime. If such a subject is brought up, a client may feel as if the attorney were implying the client has criminal tendencies. The client may feel offended and not want to disclose any further information.

Another grey area of the privilege is contact via e-mail. Most attorneys will put a “Confidentiality Disclosure” at the end of their e-mails. But what about their paralegals and law secretaries? Do they know to sign their e-mails with a “Confidentiality Disclosure” stating that the information provided via e-mail will be confidential and kept between the office and the client? How vague are the disclosures provided in the e-mails? A lot of clients do not even look over the e-mail disclosure and will just assume that all information is kept in confidence. Attorneys should really be more careful when corresponding with clients, or even potential clients. Clients should be notified of the privilege and attorneys should make sure that the privilege is understood by the client. The privilege should also be explained to all members of the attorney’s office.

While working at an attorney’s office, I was never notified of the attorney-client privilege really meant. I saw that other interns and paralegals had a confidentiality disclosure at the end of their e-mails and just copied and pasted that as part of my e-mail signature. Had I not taken notice of what others in the office had done, I wouldn’t have known to add the confidentiality disclosure to my e-mails. I’m afraid that a lot of firms do not stress the importance of confidentiality and transparency to their interns, clerks, or paralegals. If others neglect to disclose what confidentiality rights a client has, would that open the firm up for liability? Could that lead to a malpractice suit? It is always best to make sure you are forthcoming and transparent with the attorney-client privilege and that the client, or potential client, fully understands what the privilege protects and what the exceptions are. No matter how uncomfortable the discussion may be, attorneys need to find a way to properly discuss the matter of confidentiality.

-Jessica Nguyen