What you need to know about paralegal-client privilege and client confidentiality

Most people are familiar with client confidentiality, particularly attorney-client privilege and its various clauses, which is to protect all confidential communications exchanged between a client and their lawyer.

While a paralegal is not a lawyer and is instead required to work under the supervision of a licensed attorney, there are still ethical obligations that must be followed by all legal professionals with regard to their dealings with clients and hold attorneys accountable for the conduct of their employees. 

A paralegal may not establish an attorney-client relationship, provide legal advice, and advocate on behalf of clients in court, and lawyers should take steps to avoid putting their paralegals into difficult positions due to client demands, including putting policies in place to protect client information and provide training for paralegals regarding the importance of safeguarding client confidentiality.

Client confidentiality

Legal client confidentiality is a cornerstone of the attorney-client relationship and a fundamental principle in the legal profession. It is a duty imposed on attorneys and legal professionals to safeguard the privacy and protect the rights of their clients. This confidentiality ensures that clients can communicate openly and honestly with their legal representatives, fostering trust and allowing for the effective pursuit of justice.

Client confidentiality at its core

At its core, legal client confidentiality means that attorneys are ethically and often legally bound to keep all information shared by their clients confidential.

This includes not only information related to the case at hand but also personal and sensitive details. Whether discussing a criminal defense strategy, a divorce proceeding, or a business transaction, clients must feel comfortable sharing the facts, their thoughts, and concerns without fear of the information being disclosed to others.

Legal and ethical foundations

Legal client confidentiality finds its roots in both legal rules and ethical standards. While the specifics may vary by jurisdiction, the principle is universally recognized in the legal community.

For instance, the American Bar Association’s Model Rules of Professional Conduct emphasize an attorney’s duty of confidentiality, outlining the obligation to protect client information and not use it to the client’s disadvantage.

Exceptions to confidentiality

While confidentiality is sacrosanct, there are exceptions. Attorneys may breach confidentiality if they believe it is necessary to prevent a client from committing a future crime, to prevent harm to others, or if required by law or court order.

However, even in these cases, attorneys are typically encouraged to disclose as little information as possible to achieve the necessary purpose.

Building trust

Legal client confidentiality is pivotal in building trust between attorneys and clients.

Without a secure environment in which to share their legal concerns, clients may withhold critical information that could affect the outcome of their case. This trust allows attorneys to provide the most effective representation possible, as they have all the necessary information at their disposal.

Protection beyond the legal realm

Confidentiality isn’t just about protecting sensitive information within the legal realm; it also has broader societal implications. By preserving the privacy of client communications, legal client confidentiality encourages individuals to seek legal advice and assert their rights. This, in turn, contributes to a fair and just legal system where all parties have access to legal representation without fear of undue exposure.

Professional responsibility and accountability

Attorneys take their responsibility for client confidentiality seriously. Breaching this trust can have severe consequences, including disciplinary action by legal ethics boards, professional disbarment, and legal liability. This underscores the importance placed on maintaining client confidentiality in the legal profession.

Client confidentiality in the digital age

In today’s digital age, maintaining client confidentiality poses new challenges. Emails, cloud storage, and electronic communication can leave digital footprints that may be vulnerable to breaches. Attorneys must take extra precautions to protect electronic client information and ensure it is secure from unauthorized access.

Purpose of the attorney-client privilege and its limitations

The intent of the attorney-client privilege is to allow the client to feel comfortable telling their lawyer all the facts concerning the case without fear of repercussion.

It applies in these specific circumstances: 

• When the communication is shared in private and the client intends for it to remain confidential. 
• When the attorney is acting in a professional capacity with the client regarding the legal services being provided. 
• When the client is communicating with the attorney regarding those legal services.

The client is the holder of the privilege, and the attorney must have the client’s permission and consent to share confidential information. Even the court cannot compel an attorney to testify in court and reveal confidential client information.

While only the client can waive the attorney-client privilege, it might be considered waived in the following circumstances: 

• The client decides to share information with an unrepresented third party (other than a spouse or party to the case). 
• The communication made by the client concerns an intention to commit a crime. 
• The communication is necessary to protect the attorney from a legal malpractice claim.

But what about paralegal-client privilege, and is there really such a thing? 

Paralegal-client privilege: An extension of the attorney-client privilege 

The attorney-client privilege and the corresponding ethical obligations of client confidentiality extend to the paralegal and all non–lawyers working on the case. Rule 5.3 of the Model Rules requires that attorneys who are partners in a firm, have comparable managerial authority, or have supervisory authority over paralegals and other legal staff” make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.”  

Essentially what this means is that lawyers are responsible for non-lawyer ethical rule violations as long as they directed or approved the conduct, or in their capacity as partners or supervisors of the staff member, failed to take timely corrective action regarding the action.

In other words, paralegals must abide by client confidentiality on behalf on who they’re being directed by.

The obligation to protect client confidentiality extends to all types of information, including: 

• In-person meetings: Confidentiality extends to all discussions and conversations that occur during face-to-face meetings between the client and their attorney. This includes meetings at the attorney’s office, court appearances, and consultations in other locations.
• Phone calls: Telephone conversations between the client and their attorney are generally considered confidential. This includes both landline and mobile phone communications.
• Emails: Emails exchanged between the client and their attorney are typically treated as confidential. However, attorneys should take precautions to ensure the security of email communications, as digital communication can be vulnerable to interception or hacking.
• Text messages: Text messages sent between the client and their attorney are typically considered confidential, similar to email communications. Attorneys should be mindful of the security of text messages, especially if discussing sensitive information.
• Letters and written correspondence: Any written correspondence between the client and their attorney, including letters and faxes, is generally protected by confidentiality. This may include physical letters sent through traditional mail or electronic faxes or other digital means.
• Secure online communication: Some attorneys use secure online platforms or client portals to communicate and share documents with their clients. These platforms are designed to protect the confidentiality of client communications.
• Video conferencing: With the increasing use of video conferencing tools for remote meetings, discussions held via secure video conferencing platforms are typically considered confidential, as long as appropriate security measures are in place.
• Voice messages: Voicemail messages left by clients for their attorneys, as well as recorded voicemail messages from attorneys to clients, are generally considered confidential.
• Client portals: Some law firms provide clients with access to secure online portals where they can access documents, messages, and updates related to their case. Information within these portals is typically considered confidential.
• Meetings in secure environments: Even informal discussions that occur in secure and private environments, such as attorney-client consultations in a public place, are often considered confidential.

It’s important to note that while these communication methods are generally protected by client confidentiality, attorneys and clients should take steps to ensure the security of their communications.

This may include using encrypted email services, secure messaging apps, and other privacy-enhancing technologies to safeguard sensitive information.

One way to protect client confidentiality electronically is the use of built-in computer software features or custom programs that remove meta-data and notations from electronic copies of documents and avoids wide dissemination and inadvertent disclosure of privileged information. 

In the event of inadvertent disclosure, attorneys need to stress that the paralegal must immediately inform them of the erroneous release of information, rather than ignore the problem, hoping that nothing harmful results from it. The earlier the lawyer discovers the inadvertent disclosure, the quicker that steps can be taken to solve the problem, which includes informing the receiving party of the inadvertent disclosure and asking for the return of the disclosed information. 

Limitations of client confidentiality

While client confidentiality is a fundamental principle in the legal profession, there are certain limitations and exceptions that attorneys and legal professionals must be aware of. These limitations exist to balance the need to protect client privacy with other important legal and ethical considerations. Here are some key limitations of client confidentiality:

1. Crime or fraud exception: Attorneys may have a duty to disclose client confidences if they believe that their client is using their legal services to perpetrate a future crime or fraud. This exception aims to prevent attorneys from becoming unwitting participants in illegal activities. However, the threshold for invoking this exception can vary by jurisdiction, and attorneys are generally encouraged to disclose as little information as possible to prevent the crime or fraud.
2. Court orders and legal obligations: Attorneys may be compelled to disclose client confidences when ordered by a court or required to do so by law. For example, if a court issues a subpoena for client records or testimony, attorneys may need to comply with the court’s order, potentially breaching confidentiality. Additionally, some jurisdictions have mandatory reporting laws that require attorneys to report certain types of misconduct, such as child abuse.
3. Joint representation: In cases where multiple clients are jointly represented by the same attorney or law firm, there may be limitations on client confidentiality. When the interests of these clients conflict, attorneys must navigate the delicate balance between maintaining confidentiality for one client and fulfilling their duty to another client. This situation can be particularly complex, and attorneys may need to withdraw from representation if conflicts cannot be resolved.
4. Future disputes with clients: In some situations, clients may file lawsuits against their former attorneys, alleging malpractice or other misconduct. Attorneys may be permitted to disclose otherwise confidential information to defend themselves in such legal disputes. This can create a tension between the attorney’s duty to maintain client confidentiality and their need to protect their own interests.
5. Implied waiver: Clients may inadvertently or explicitly waive their right to confidentiality by sharing privileged information with third parties or discussing their legal matters publicly. Once waived, the attorney-client privilege may not apply to the disclosed information.
6. Client harm to self or others: While rare, there are circumstances where attorneys may have a duty to disclose client confidences if they believe the client poses a risk of harm to themselves or others. This duty to protect potential victims may override the duty of confidentiality in extreme cases.
7. Death of the client: In some jurisdictions, the duty of confidentiality may extend beyond the death of the client, but it may be limited by the executor’s or personal representative’s access to client information for the purpose of administering the client’s estate. The scope of this exception can vary by jurisdiction. For example, in California, “Under the Evidence Code (Sections 953-954), the attorney-client privilege survives the client’s death so long as there is a personal representative, who holds the deceased client’s privilege.”

Conclusion

Client confidentiality is crucial in law, covering various communication methods like in-person meetings, emails, and phone calls. It safeguards all information shared between clients and attorneys, from case details to legal strategies.

This privilege extends to paralegals working under attorney supervision. Despite the digital age’s challenges, attorneys must ensure secure electronic communication.

Exceptions exist, such as preventing crimes or complying with court orders. Overall, client confidentiality fosters trust, upholds ethics, and safeguards the justice system’s integrity.