It is important to understand that confidentiality and attorney-client or legal professional privilege are two different concepts providing different protection. The ambit of confidentiality is much wider than legal professional privilege, and may arise from contractual or fiduciary relationship between an attorney and client. Accordingly, even though information has to be confidential in order to be privileged, confidentiality on its own does not necessarily entitle one to claim privilege.
An attorney may agree that he will keep all information shared by a client confidential, but our law does not necessarily afford the protection of privilege to all of the communications between an attorney and client. The right to protect communications belongs to the client and only he may expressly waive this right and it will even survive termination of mandate between the attorney and the client and death of the client.
Legal professional privilege may be raised by a party in court to resist disclosure of information as evidence. An agreement between an attorney and client that all communication will be kept confidential, does not for example stop a court from requiring the disclosure of certain communications that are relevant to a matter forming the subject of litigation. In order to raise privilege during court proceedings, the following requirements in respect of the communications must be met:
- The attorney must have acted in a professional capacity;
- The client must have consulted with the attorney in confidence;
- The communications must have been made for the purpose of obtaining legal advice;
- The advice given must not facilitate the commission of a crime or fraud.
Confidentiality thus protects communications between attorneys and their clients from disclosure to third parties, but not in all instances against disclosure in court proceedings or where required to be disclosed by law. Legal professional privilege – limited to only specific types of qualifying communications – on the other hand does afford protection against such disclosures.
So although communications regarding your business with your attorney will be confidential, it may not qualify for legal professional privilege, unless it can be seen not as business advice, but as legal advice provided to you.