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What does "Duty of Confidentiality" Mean?

By John Kinsellagh
Updated: May 16, 2024

A duty of confidentiality refers to an ethical obligation imposed on someone, by either a special relationship recognized by the law; by the standards of a certain profession; or by the provisions of a binding contract. The duty to keep communications confidential may arise by virtue of an attorney-client, physician-patient or a priest-penitent relationship. Each of these relationships is recognized by law as having a special status that prevents the disclosure of private information.

One of the most established and inviolate of these relationships, that gives rise to a duty of confidentiality, is that of an attorney and her client. An attorney, or lawyer, is duty-bound to keep the confidences of her client confidential. Any communication between these two parties are characterized as privileged, and the attorney is ethically-bound to keep the conversations confidential. The nature of the relationship, and the obligations it imposes on attorneys, is codified in the Canons of Professional Responsibility by which all attorneys are bound.

An attorney may not be compelled by the government to violate her oath of confidentiality or disclose privileged communications with her client. Not all communications with an attorney are privileged. In order for one to raise the privilege, an attorney-client relationship must first be established. If an individual solicits an attorney for advice and no formal attorney-client relationship develops, usually, the attorney is still bound to treat her conversations with the individual as private.

Even though the duty of confidentiality is imposed on the attorney, the privilege actually belongs to the client, not the attorney. The client may waive the privilege and confidential nature of the relationship by disclosing the content of his communications with his attorney to a third party. In such cases, the client is said to have waived the privilege. An attorney may disclose confidential information to third parties only with the consent of the client. When in doubt as to whether the client has waived the privilege, in whole or in part, the attorney must obtain express authorization first from the client, before disclosing any information.

A duty of confidentiality may also arise by virtue of a contractual obligation. Often a corporation will seek to protect its trade secrets or proprietary information from unauthorized disclosure by requiring those who may be exposed to such information to execute a non-disclosure agreement. An individual who is a party to such an agreement has a legal duty not to disclose the confidential information to third parties. Since the unauthorized disclosure of the proprietary information by the recipient to others could cause irreparable harm to the business interests of the disclosing party, a breach of the confidentiality provisions could subject the recipient of the information to liability.

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Discussion Comments
By Rotergirl — On Nov 25, 2014

@Pippinwhite -- So true. Several years ago, a pastor told his wife some things he heard, without putting names to them. Unfortunately, the wife figured out who he was talking about and promptly told everyone she could think of. It was a huge mess and eventually led to the pastor's resignation. It was awful. I was sorry for the whole congregation.

I've heard of attorneys being compelled to break confidentiality, and know of a couple who spent some time in jail on a contempt charge because of it. They were usually released as soon as another judge heard the case.

By Pippinwhite — On Nov 25, 2014

It may not be a legal duty, but the clergy have an ethical duty to keep the confidentiality of their congregation. That is, what someone says to a member of the clergy in a counseling setting, is considered confidential. I think, in the case of a Catholic priest, the duty of confidentiality even extends to the courtroom, if a person discusses a sin in the confessional. Some courts recognize this distinction, anyway.

People often tell their pastors their deepest secrets and the minister is ethically bound to keep these secrets. Pastors have been sued successfully for telling secrets that ruined reputations. It's an ethical, and in my opinion, a sacred duty, to keep confidentiality.

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