Confidentiality & Privilege Bar Exam Guide

Confidentiality vs. Attorney-Client Privilege: They Are NOT the Same

This is the number one mistake students make in professional responsibility. The duty of confidentiality (Model Rule 1.6) and attorney-client privilege (evidence law) overlap but are fundamentally different.

This guide is part of our Professional Responsibility complete framework.

The Critical Distinction

Feature	Duty of Confidentiality (Rule 1.6)	Attorney-Client Privilege
Source	Ethics rules (Model Rules)	Evidence law
Scope	ALL information relating to the representation, regardless of source	Only confidential communications between attorney and client for purpose of legal advice
When Invoked	Everywhere -- conversations, filings, casual mentions	Only when compelled testimony or document production is sought
Duration	Survives termination of representation and client death	Survives termination and death (with some exceptions)
Consequence of Breach	Disciplinary action	Evidence may be suppressed; malpractice liability

Exam Trap: "The attorney learned from a newspaper that her client was involved in a business deal. She mentioned this to a friend." This violates the duty of confidentiality -- the information relates to the representation even though it came from a public source. It would NOT violate attorney-client privilege (not a communication from the client).

Duty of Confidentiality: Rule 1.6

The General Rule

A lawyer shall NOT reveal information relating to the representation of a client unless:

The client gives informed consent
The disclosure is impliedly authorized to carry out the representation
An exception applies

The Exceptions (When Disclosure IS Permitted)

Under Rule 1.6(b), a lawyer MAY reveal confidential information to:

Exception	Rule	Key Detail
Prevent death or substantial bodily harm	1.6(b)(1)	Reasonably certain death/harm -- does NOT require criminal act
Prevent client crime/fraud causing financial harm	1.6(b)(2)	Only if client used lawyer's services in the crime/fraud
Mitigate financial harm from client crime/fraud	1.6(b)(3)	After the fact -- client already committed the act using lawyer's services
Obtain legal ethics advice	1.6(b)(4)	Lawyer can consult about own obligations
Establish a claim or defense	1.6(b)(5)	In fee disputes, malpractice defense, or disciplinary proceedings
Comply with court order or law	1.6(b)(6)	Required by other law or court order
Detect conflicts	1.6(b)(7)	Limited info to check conflicts when changing firms

Mnemonic -- "D-FACED-C": Death/harm, Financial crime prevention, After-the-fact mitigation, Counsel (ethics advice), Establish claim/defense, Directed by court/law, Conflict detection.

Permitted vs. Required Disclosure

Under the Model Rules, most exceptions only permit disclosure -- they do not require it. The lawyer exercises professional judgment. However:

Some state rules require disclosure to prevent death or serious harm
Rule 3.3 (Candor to Tribunal) can require disclosure of certain information to the court

Special Confidentiality Situations

Former Clients (Rule 1.9)

A lawyer cannot reveal information relating to a former client's representation. This duty survives the end of the relationship.

Prospective Clients (Rule 1.18)

Even if you never take the case, information learned during a consultation with a prospective client is protected. This can create disqualification issues.

Exam Trap: "An attorney met with a potential client who described their business fraud. The attorney declined the case. Can the attorney now represent the opposing party?" Probably not -- unless the information can be screened and the prospective client gives consent.

Organizational Clients (Rule 1.13)

When a lawyer represents an organization, the client is the organization, not its officers or employees. If a lawyer discovers that an officer is acting against the organization's interest, the lawyer may "report up" within the organization.

Attorney-Client Privilege: Key Rules

Elements

Communication (not underlying facts)
Between attorney and client (or their agents)
Made in confidence
For the purpose of obtaining legal advice

Major Exceptions/Waivers

Crime-Fraud Exception: Privilege does not apply if the client consulted the attorney to further a crime or fraud
Waiver: Client can waive privilege; voluntary disclosure to third parties waives it
Joint Client Exception: No privilege between joint clients in subsequent disputes between them

Work Product Doctrine (Hickman v. Taylor)

Related but distinct: materials prepared by an attorney in anticipation of litigation are protected from discovery. Work product protection is broader than privilege in some ways (covers attorney's thoughts and analysis) but narrower in others (only in litigation context).

Practice Spotters

Spotter 1

"An attorney represents a client in a business transaction. The client tells the attorney he plans to use the contract to defraud investors. The attorney withdraws but says nothing."

Analysis: Under Rule 1.6(b)(2), the attorney MAY disclose to prevent financial harm if the client is using the attorney's services. Since the attorney drafted the contract, disclosure is permitted. Whether to disclose is the attorney's judgment call under the Model Rules (some states require it).

Spotter 2

"A client tells her attorney that she committed a murder 10 years ago. The wrong person is in prison."

Analysis: Under the Model Rules, the attorney may NOT disclose -- the crime is past, no future death/harm is imminent, and the client did not use the attorney's services in committing it. This is a famously difficult ethical situation with no exception permitting disclosure under Rule 1.6.

Key Takeaways

Confidentiality is BROADER than privilege -- it covers all information relating to the representation
Most exceptions permit but do not require disclosure
Rule 1.6(b)(1) -- death/harm exception -- does NOT require a criminal act
Crime-fraud exception applies to both confidentiality and privilege
Always distinguish between what the Model Rules say and what your state may require

Continue with Conflicts of Interest or return to the Professional Responsibility complete framework.

Study with our Professional Responsibility outline templates.