The Attorney-client Privilege v. The Confidentiality Rule: A Lawyer’s Conundrum in the Use and Application of the Evidence Code v. The Rules of Professional Conduct
Because the confidentiality rule applies to all information relating to the representation, and not merely to matters communicated in confidence, the ethical duty of confidentiality is much broader than the attorney-client privilege
From newly admitted members of The Florida Bar to those ready for retirement after countless years of dedication to the legal profession, many lawyers have committed the faux crime of using “privileged” and “confidential” interchangeably when justifying why they cannot disclose certain information relating to a client’s representation. Why is this?
Perhaps the simplest answer is many lawyers honestly, albeit mistakenly, believe the attorney-client privilege[1] and the confidentiality rule[2] are essentially the same, particularly as it relates to the meaning of “confidential” and, therefore, can be applied in the same way under the same circumstances.
Perhaps the more complicated answer lies in the fact the attorney-client privilege and confidentiality rule are two related bodies of law, both given effect by the principle of confidentiality.[3] However, the fact that the attorney-client privilege and confidentiality rule are related does not mean they are the same or that “privileged” and “confidential” should be used interchangeably.
“A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation.”[4] However, there is a core and rather significant distinction between the attorney-client privilege and the confidentiality rule that is often misunderstood or overlooked by lawyers.
To begin, the attorney-client privilege, which includes the work product doctrine, is governed by the Florida Evidence Code and is, therefore, a matter of law.[5]
In this state, “the privilege protects only communications to and from a lawyer; it does not protect facts known by the client independent of any communication with the lawyer, even if the client later tells the fact to the lawyer[.]”[6] This means that “[a]lthough the communication between the attorney and client is privileged, the underlying facts are discoverable.”[7]
In other words, if a lawyer’s client is asked, “What did you say or write to your lawyer,” they cannot be compelled to answer the question. However, they cannot refuse to disclose a relevant fact they have actual knowledge of just because they discussed it in their communication to their lawyer.[8]
On the other hand, the confidentiality rule is governed in The Florida Bar Rules of Professional Conduct and is, therefore, a matter of professional ethics.[9]
Another important distinction between these two related, but different, bodies of law is in how they are applied. The attorney-client privilege applies in judicial and administrative proceedings in which a lawyer may be called as a witness or required to produce evidence concerning a client. As such, the application of the attorney-client privilege often calls for legal questions outside the scope of advisory ethics opinions that Florida Bar ethics attorneys are authorized to give, as they arise under substantive law rather than the Rules of Professional Conduct.[10]
For the attorney-client privilege to apply in Florida, a communication between the lawyer and client must have been made during the actual rendition of legal services to the client and be “confidential,” meaning “it is not intended to be disclosed to third persons” except as provided in the Evidence Code.[11]
In contrast, the confidentiality rule pertains to disclosures outside of judicial and administrative hearings[12] and applies in situations other than those where evidence is sought from the lawyer through subpoena or other compulsion of law.[13] In other words, voluntary disclosures by the lawyer, not compelled.
Under the Rules of Professional Conduct, any information related to the representation of a client — whatever its source — is considered “confidential” and a lawyer cannot reveal it unless their client gives informed consent or an exception to the rule applies.[14]
As a practical matter, this means, absent consent from the client or the applicability of one of the exceptions in the confidentiality rule, a lawyer cannot voluntarily disclose confidential information, even if the client intends to disclose it to third persons. It also applies whether the information is obtained from, or in the presence of, a third party, or stems from some other source other than the client.
Because the confidentiality rule applies to all information relating to the representation, and not merely to matters communicated in confidence, the ethical duty of confidentiality is much broader than the attorney-client privilege.[15]
If, under the ethics rules, all information relating to a client’s representation is deemed confidential and voluntary disclosure in the absence of a client’s consent or an exception to the rule is prohibited, then what is a lawyer to do when they are compelled by law (i.e., subpoenaed) to disclose such information?
This is a common question posed to ethics attorneys and the straightforward answer is: “If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, [the confidentiality rule] requires the lawyer to invoke the [attorney-privilege] when it is applicable.” [16]
This means, for example, if a lawyer is compelled by subpoena at deposition to provide information relating to a client’s representation, they may not assert confidentiality to avoid answering questions. Rather, once compelled, privilege is applicable instead of confidentiality.[17]
In practice then, the first thing a lawyer must do is determine whether the subpoenaed information is privileged. If it is, then the lawyer should assert the privilege. If the court compels production over the lawyer’s assertion of privilege, then the lawyer must comply with the court’s order unless they have a good faith basis to appeal the court’s decision.[18]
However, the reality is lawyers are often unsure of whether the subpoenaed information is privileged. Should this ever be the case, in an abundance of caution, a lawyer should err on the side of asserting privilege.
On the other hand, if a lawyer knows that any of the subpoenaed information is not privileged, they must comply with the subpoena.
To be clear, a lawyer cannot ethically use the confidentiality rule as a shield when compelled by law to disclose confidential information in judicial and administrative hearings. However, it is important for lawyers to understand the mere fact that certain information may fall under an exception to the confidentiality rule does not mean such information is not privileged, assuming the requirements for privilege are met.[19]
Ultimately, the Evidence Code and Rules of Professional Conduct establish different standards, whereby the attorney-client privilege and the confidentiality rule should not be treated as two sides of the same coin and a lawyer should never use “privileged” and “confidential” interchangeably to justify why they cannot make certain disclosures.
If a Florida Bar member, or a lawyer admitted in another jurisdiction who is authorized by other law to provide legal services in Florida, ever has a question about the confidentiality rule, its exceptions, or its application as it relates to their future or contemplated conduct, they may call the Ethics Hotline for an informal advisory ethics opinion at 800-235-8619, 9 a.m. until 5 p.m., Monday through Friday.
[1] S. 90.502, Fla. Stat.
[2] Rule 4-1.6, R. Reg. The Fla. Bar, or “the rule of client-lawyer confidentiality.” See, Coffey-Garcia v. South Miami Hosp., Inc., 194 So.3d 533, 536 (2016). See also, Comment to Rule 4-1.6, R. Reg. The Fla. Bar
[3] Comment to Rule 4-1.6, R. Reg. The Fla. Bar.
[4] Id.
[5] Codified at s. 90.502, Fla. Stat.
[6] Coffey at 537 (2016).
[7] Carnival Corp. v. Romero, 710 So.2d 690, 694 (Fla. 5th DCA 1998)
[8] Coffey at 537, citing Upjohn Co. v. U.S., 449 U.S. 383, 396, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)
[9] Coffey at 536, discussing Rule 4-1.6, R. Reg. The Fla. Bar. Also see Rule 4-1.6, R. Reg. The Fla. Bar.
[10] Legal questions are beyond the scope of an advisory ethics opinion. See, Procedure 2(a)(1), Florida Bar Procedures for Ruling on Questions of Ethics.
[11] Ss. 90.508(1)(c) and (2), Fla. Stat.
[12] Coffey at 536.
[13] Comment to Rule 4-1.6, R. Reg. The Fla. Bar.
[14] Rule 4-1.6, R. Reg. The Fla. Bar. Under Rule 4-1.6, a lawyer may only disclose information relating to the representation if the lawyer has the client’s informed consent or one of the exceptions stated in subdivisions (b) or (c) applies.
[15] Buntrock v. Buntrock, 419 So.2d 402 (Fla. 4th DCA 1982). Ethical confidentiality rule is broader than attorney-client privilege and applies even though the same information is discoverable from other sources. See also, Coffey–Garcia v. South Miami Hosp., Inc., 194 So.3d 533, 536 n. 1 (Fla. 3d DCA 2016) (observing that “[t]he distinction between the Ethics Code and Evidence Code is significant because Florida courts have interpreted the Ethics Code’s rule of client-lawyer confidentiality to be broader in scope than the Evidence Code’s attorney-client privilege.”). Also see Comment to Rule 4-1.6, R. Reg. The Fla. Bar.
[16] Comment to Rule 4-1.6, R. Reg. The Fla. Bar.
[17] Vasallo v. Bean, 208 So. 3d 188, 188 (Fla. Dist. Ct. App. 2016).
[18] Rule 4-1.6(d), R. Reg. The Fla. Bar. Any assertion on appeal made by a lawyer must have “a basis in law and fact for doing so that is not frivolous. Rule 4-3.1 regarding meritorious claims and contentions.
[19] Kleinfeld v. State, 568 So.2d 937 (Fla. 4th DCA 1990), rev. denied, 581 So.2d 167 (Fla. 1991).
