Professional communications between lawyer and client are confidential. In legal jargon, this confidentiality is called “privileged”. This privilege exists once the lawyer has been retained. But it applies equally to communications made in contemplation of being retained, even if the lawyer is never retained. And it continues after conclusion of the lawyer-client relationship.
Various bodies of law protect this confidentiality. Those bodies include New Jersey Rule of Professional Conduct Section 1.6, and New Jersey Evidence Rule 504. They include proceedings in federal tribunals under Federal Rules of Evidence 501, 502, and 1101(c).
In litigation, a lawyer is required to assert the privilege when asked for protected information. These assertions of privilege are honored in discovery, before administrative agencies, and even during a trial. A lawyer's unauthorized disclosure of these communications subjects the lawyer to discipline. This discipline can take the form of ethical sanctions, or a civil suit for malpractice, or both. The ethical sanctions would be for violation of the lawyer's duty to maintain the confidentiality of information relating to representation of a client. The sanction for violation of those rules can be an admonition, a reprimand, censure, suspension, or disbarment.
The privilege “belongs” to the client, not the lawyer. Thus the client is at liberty to divulge the privileged information; the lawyer is not. In legal jargon, the client can “waive” the privilege.
Waivers can be explicit or implicit. Explicit waiver occurs when the client tells the lawyer that the lawyer can divulge otherwise confidential information. Explicit waiver can be written or verbal. Verbal waivers are as valid as written waivers. Written waivers are nevertheless superior to verbal waivers in that written waivers document that the waiver exists, should disagreement over that fact ever arise. Written waivers are also superior because, when worded precisely, they spell out exactly what information is being waived.
Implicit waiver occurs when the client expects the lawyer to use the confidential information to further the client's interests. For example, when a client retains the services of a lawyer to sue somebody, the client expects the lawyer to relate disclosed details of the event in presenting the case to the court. The lawyer does not have to ask the client for explicit permission to utilize information that the client provided for that purpose.
Situations exist where lawyers may disclose otherwise privileged information even in the absence of a waiver. Sometimes, in fact, these disclosures are mandatory. For example, lawyer must divulge confidential information when that information relates to the client's intention to commit a criminal act when that future act is likely to cause any of the following:
- Death to another;
- Substantial bodily harm to another;
- Substantial injury to the financial interest of another;
- Substantial injury to the property of another.
Exceptions to the lawyer's duty to maintain confidentiality of client communications go beyond what is specified on this page. Allan Marain, and all persons who work in his office, honor their duty of maintaining confidentiality of client information. They interpret that duty broadly. They interpret exceptions to that duty narrowly. They honor confidences.