Decision Highlights the Difference Between the Ethics Duty of Confidentiality and the Attorney-Client Privilege

January 4, 2012

Although lawyers’ ethics duties and the attorney-client privilege both focus on confidentiality, they have dramatically different scopes. In most states, the ethics duty of confidentiality covers all information relating to the representation of a client, regardless of its source or materiality. The attorney-client privilege covers only some communications between clients and their lawyers.

In In re Heckmann Corp. Securities Litigation, C.A. No. 10-379-LPS-MPT, 2011 U.S. Dist. LEXIS 134402 (D. Del. Nov. 22, 2011), the court dealt with asserted privilege protection for a client’s whereabouts. That sort of information would clearly be covered by a lawyer’s ethics duty of confidentiality. However, the court correctly found that “[w]here clients’ contact information may be covered by the privilege is the exception.” Id. at *20. As the court explained, the privilege protects such information only when a client’s “address itself [is] at the heart of the advice sought.” Id.

Lawyers erroneously equating their ethics duty and the privilege can run into trouble if they disclose information (even information on the public record) that does not deserve privilege protection, but falls within the more expansive ethics duty of confidentiality.