![Confidentiality, Privilege: A Basic Value in Two Different
Applications.
By Sue Michmerhuizen*
May, 2007
The concepts of lawyer confidentiality and attorney-client
privilege both concern
information that the lawyer must keep private and are protective
of the client’s ability to
confide freely in his or her lawyer, but the concepts are not
synonymous. Terminology
from both, such as “privileged information” or “waiver” are
sometimes used
interchangeably, further causing the differences between them
to become somewhat
blurred. However there are several critical differences between
the two in their
applicability and exceptions and the extent of information
covered.
The principle of confidentiality is set out in the legal ethics
rules in each jurisdiction and
in ABA Model Rule 1.6. Model Rule 1.6 Comment [2] states:
“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. … This contributes
to the trust that is the hallmark of the client-lawyer](https://image.slidesharecdn.com/confidentialityprivilegeabasicvalueintwodiffe-221129184648-00d7e1e1/85/Confidentiality-Privilege-A-Basic-Value-in-Two-Diffe-docx-1-320.jpg)
![relationship.” A violation of the
ethics rule may lead to disciplinary sanctions.
On the other hand, the attorney-client privilege, sometimes
referred to as the testimonial
privilege, is a concept from the law of evidence and is present
in the common law or
statutes of the fifty states. The client, acting through the
lawyer, may claim the privilege.
As stated in Model Rule 1.6, Comment [3]: “The attorney-client
privilege and work-
product doctrine apply in judicial and other proceedings in
which a lawyer may be called
as a witness or otherwise required to produce evidence
concerning a client.”
Work-product protection is of relatively recent origin, springing
from court decisions
construing the formal discovery procedures enshrined in the
Federal Rules of Civil
Procedure. Under this doctrine, a lawyer’s notes, observations,
thoughts and research
are protected from discovery processes.
The attorney-client privilege only protects the essence of the
communications actually
had by the client and lawyer and only extends to information
given for the purpose of
obtaining legal representation.. The underlying information is
not protected if it is
available from another source. Therefore, information cannot
be placed under an
evidentiary “cloak” of protection simply because it has been
told to the lawyer.
By contrast, the ethical duty of client-lawyer confidentiality is](https://image.slidesharecdn.com/confidentialityprivilegeabasicvalueintwodiffe-221129184648-00d7e1e1/85/Confidentiality-Privilege-A-Basic-Value-in-Two-Diffe-docx-2-320.jpg)
![D’s behavior. All laboratory and diagnostic imaging tests
(including CT-scan of the head) were normal. According to his
son, he has been demonstrating some strange thoughts and
behaviors for the past two years, but things seem to be getting
worse. Per the client’s son, the family noticed that Mr. J. D’s
personality began to change a few years ago. He began to lose
interest in religious activities with the family and became more
“critical” of everyone. They also noticed that things he used to
take seriously had become a source of “amusement” and
“ridicule.” Over the course of the past two years, the family has
noticed that Mr. J. D’s has been forgetting things. His son also
reports that sometimes he has difficult “finding the right words”
in a conversation and then will shift to an entirely different line
of conversation.
During the clinical interview, Mr. J. D’s is pleasant,
cooperative and seems to enjoy speaking with you. You notice
some confabulation during various aspects of memory testing,
so you perform a Mini-Mental State Exam. Mr. J. D’s 18 out of
30 with primary deficits in orientation, registration, attention &
calculation, and recall. The score suggests moderate dementia.
MENTAL STATUS EXAM
Mr. J. D’s is 76 year old Iranian male who is cooperative with
today’s clinical interview. His eye contact is poor. Speech is
clear, coherent, but tangential at times. He makes no unusual
motor movements and demonstrates no tic. Self-reported mood
is euthymic. Affect however is restricted. He denies visual or
auditory hallucinations. No delusional or paranoid thought
processes noted. He is alert and oriented to person, partially
oriented to place, but is disoriented to time and event [he
reports that he thought he was coming to lunch but “wound up
here”- referring to your office, at which point he begins to
laugh]. Insight and judgment are impaired. Impulse control is
also impaired as evidenced by Mr. Akkad’s standing up during
the clinical interview and walking towards the door. When you
asked where he was going, he stated that he did not know. Mr.
Akkad denies suicidal or homicidal ideation.](https://image.slidesharecdn.com/confidentialityprivilegeabasicvalueintwodiffe-221129184648-00d7e1e1/85/Confidentiality-Privilege-A-Basic-Value-in-Two-Diffe-docx-6-320.jpg)
Confidentiality, Privilege A Basic Value in Two Diffe.docx
- 1. Confidentiality, Privilege: A Basic Value in Two Different Applications. By Sue Michmerhuizen* May, 2007 The concepts of lawyer confidentiality and attorney-client privilege both concern information that the lawyer must keep private and are protective of the client’s ability to confide freely in his or her lawyer, but the concepts are not synonymous. Terminology from both, such as “privileged information” or “waiver” are sometimes used interchangeably, further causing the differences between them to become somewhat blurred. However there are several critical differences between the two in their applicability and exceptions and the extent of information covered. The principle of confidentiality is set out in the legal ethics rules in each jurisdiction and in ABA Model Rule 1.6. Model Rule 1.6 Comment [2] states: “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. … This contributes to the trust that is the hallmark of the client-lawyer
- 2. relationship.” A violation of the ethics rule may lead to disciplinary sanctions. On the other hand, the attorney-client privilege, sometimes referred to as the testimonial privilege, is a concept from the law of evidence and is present in the common law or statutes of the fifty states. The client, acting through the lawyer, may claim the privilege. As stated in Model Rule 1.6, Comment [3]: “The attorney-client privilege and work- product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.” Work-product protection is of relatively recent origin, springing from court decisions construing the formal discovery procedures enshrined in the Federal Rules of Civil Procedure. Under this doctrine, a lawyer’s notes, observations, thoughts and research are protected from discovery processes. The attorney-client privilege only protects the essence of the communications actually had by the client and lawyer and only extends to information given for the purpose of obtaining legal representation.. The underlying information is not protected if it is available from another source. Therefore, information cannot be placed under an evidentiary “cloak” of protection simply because it has been told to the lawyer. By contrast, the ethical duty of client-lawyer confidentiality is
- 3. quite extensive in terms of what information is protected. It applies not only to matters communicated in confidence by the client but also to all information relating to the representation regardless of whether it came from the client herself, or from another source. It applies in all situations, though a lawyer may be required to testify regarding client communications under compulsion of law. So, if a court determines that particular information is not covered by the attorney-client privilege, it still may be covered by the lawyer’s ethical duty of confidentiality. However, under the exception to confidentiality related to compliance with a court order, the lawyer may be compelled to reveal the information nonetheless. Material not shielded by the lawyer work-product doctrine may likewise still be encompassed under the ethical duty of confidentiality. Confidential information is to remain confidential throughout the representation, and thereafter, even after the death of the client. Along with the basic principle of maintaining the privacy of client information, a key precept of ethically maintaining confidentiality is that the information not be used to the detriment of the client, but rather only to advance the client’s interests. Even information gained about the client after the representation has concluded is to be kept confidential. However, once information has
- 4. become generally known, not just known by some few others, it loses the protection of lawyer confidentiality. In addition, a client can give informed consent to his or her lawyer to reveal confidential information or information otherwise protected by the privilege. This consent may be implied in certain circumstances. And the attorney-client privilege can be inadvertently waived at trial by a failure to object to prevent testimony about the privileged communications. Exceptions to attorney-client privilege may arise when there is an overriding public policy, as enunciated by the court or a fiduciary responsibility to another party, such as a shareholder. A “crime-fraud” exception to the privilege allows disclosure of information communicated by the client in an attempt by the client to use the lawyer’s services to commit or cover up a crime or fraud. The exceptions to the confidentiality rule vary somewhat from state to state and reflect different weightings of the balancing process between the several societal goals involved. Most jurisdictions make a specific exception in their ethics rules to permit disclosure that will prevent death or substantial bodily injury. In addition, the ethics rules in most jurisdictions permit and sometimes require a lawyer to disclose information in order to prevent and/or rectify the consequences of a crime or fraud that injures the financial or
- 5. property interests of another. The crime-fraud exception to confidentiality differs somewhat from the attorney-client privilege crime-fraud exception, in that it is tied to substantial injury and addresses rectification. Other exceptions to the confidentiality rule include disclosure that is authorized by law, disclosure impliedly authorized by the client in order to effectuate the representation, disclosure for the lawyer to seek legal ethics advice and disclosure by the lawyer in self- defense against a claim by the client. *Sue Michmerhuizen is ETHICSearch Research Counsel for the ABA’s Center for Professional Responsibility. http://www.americanbar.org/groups/professional_responsibility. html http://www.americanbar.org/groups/professional_responsibility. html Case Study J.D is a 86 year old Iranian male who is brought to your office by his eldest son for “strange behavior.” Mr. J.D was seen by his family physician who ruled out any organic basis for Mr. J.
- 6. D’s behavior. All laboratory and diagnostic imaging tests (including CT-scan of the head) were normal. According to his son, he has been demonstrating some strange thoughts and behaviors for the past two years, but things seem to be getting worse. Per the client’s son, the family noticed that Mr. J. D’s personality began to change a few years ago. He began to lose interest in religious activities with the family and became more “critical” of everyone. They also noticed that things he used to take seriously had become a source of “amusement” and “ridicule.” Over the course of the past two years, the family has noticed that Mr. J. D’s has been forgetting things. His son also reports that sometimes he has difficult “finding the right words” in a conversation and then will shift to an entirely different line of conversation. During the clinical interview, Mr. J. D’s is pleasant, cooperative and seems to enjoy speaking with you. You notice some confabulation during various aspects of memory testing, so you perform a Mini-Mental State Exam. Mr. J. D’s 18 out of 30 with primary deficits in orientation, registration, attention & calculation, and recall. The score suggests moderate dementia. MENTAL STATUS EXAM Mr. J. D’s is 76 year old Iranian male who is cooperative with today’s clinical interview. His eye contact is poor. Speech is clear, coherent, but tangential at times. He makes no unusual motor movements and demonstrates no tic. Self-reported mood is euthymic. Affect however is restricted. He denies visual or auditory hallucinations. No delusional or paranoid thought processes noted. He is alert and oriented to person, partially oriented to place, but is disoriented to time and event [he reports that he thought he was coming to lunch but “wound up here”- referring to your office, at which point he begins to laugh]. Insight and judgment are impaired. Impulse control is also impaired as evidenced by Mr. Akkad’s standing up during the clinical interview and walking towards the door. When you asked where he was going, he stated that he did not know. Mr. Akkad denies suicidal or homicidal ideation.
- 7. Diagnosis: Major neurocognitive disorder due to Alzheimer’s disease (presumptive) RESOURCES § Folstein, M. F., Folstein, S. E., & McHugh, P. R. (2002). Mini-Mental State Examination (MMSE). Lutz, FL: Psychological Assessment Resources. Decision Point One: Begin Aricept (donepezil) 5 mg orally at BEDTIME RESULTS OF DECISION POINT ONE · Client returns to clinic in four weeks · The client is accompanied by his son who reports that his father is “no better” from this medication. · He reports that his father is still disinterested in attending religious services/activities, and continues to exhibit disinhibited behaviors. · You continue to note confabulation and decide to administer the MMSE again. Mr. J. D’s again scores 18 out of 30 with primary deficits in orientation, registration, attention & calculation, and recall. Decision Point Two : increase Aricept to 10mg orally at bedtime RESULTS OF DECISION POINT TWO · Client returns to clinic in four weeks · Client’s son reports that the client is tolerating the medication well, but is still concerned that his father is no better · He states that his father is attending religious services with the family, which the son and the rest of the family is happy about. He reports that his father is still easily amused by things he once found serious Decision Point Three : continue Aricept to 10mg orally at bedtime At this point, it would be prudent to continue Aricept at 10 mg orally at bedtime. Recall that this medication can take several months before stabilization of deterioration is noted. At this point, the client is attending religious services with the
- 8. family, which has made the family happy. Assignment Write a 2 to 3-pages summary paper that addresses the following: · Briefly summarize the patient case study assigned, including each of the three decisions you took for the patient presented. · Based on the decisions you recommended for the patient case study, explain whether you believe the decisions provided were supported by the evidence-based literature. Be specific and provide examples. Be sure to support your response with evidence and references from outside resources. · What were you hoping to achieve with the decisions you recommended for the patient case study you were assigned? Support your response with evidence and references from outside resources. · Explain any difference between what you expected to achieve with each of the decisions and the results of the decision in the exercise. Describe whether they were different. Be specific and provide examples.