What is the difference between privileged and confidential information?

Direct answer

“Privileged” information is a narrower evidentiary category: it is protected from compelled disclosure in a proceeding if the governing privilege applies. “Confidential” information is broader: it includes privileged material plus other client information a lawyer must keep secret even if it would not be privileged in court. In California, for example, lawyer confidentiality under Business and Professions Code § 6068(e)(1) and Rule 1.6 extends beyond the attorney-client privilege and can also cover work product and other information learned through the representation.[4]

Key distinction

ConceptWhat it meansWhere it mattersBreadth
PrivilegedProtected from disclosure in legal proceedings if it meets the elements of the attorney-client privilegeEvidence law; subpoenas; discovery; testimonyNarrower
ConfidentialInformation the lawyer must not reveal without consent, subject to exceptionsProfessional responsibility/ethicsBroader

Privileged information

The attorney-client privilege protects confidential communications between attorney and client made for the purpose of obtaining or providing legal advice.[1][2][3] The privilege is rooted in Federal Rule of Evidence 501 and common-law principles, and its purpose is to encourage full and frank communication.[3][5] In the Ninth Circuit, dual-purpose communications are analyzed under the primary purpose test for privilege purposes.[1][2]

Confidential information

Confidentiality is an ethical duty that is broader than privilege. California Rule 1.6 explains that the duty of confidentiality applies to information a lawyer acquires through the representation, “whatever its source,” and includes:

  • communications protected by privilege,
  • material protected by the work-product doctrine, and
  • other information learned in the course of the representation.[4]

The ABA Model Rule likewise bars revealing “information relating to the representation of a client,” subject to enumerated exceptions.[6]

Practical examples

A client tells her lawyer, “I stole the trade secrets.”

That statement is generally confidential; whether it is privileged depends on whether it was a communication for legal advice and whether an exception applies.

A client gives the lawyer financial records to help prepare a tax return.

The underlying records may be confidential, but they are not necessarily privileged simply because the lawyer possesses them.[1][2][3]

A lawyer learns damaging facts about a client from a third party during representation.

Those facts may be confidential under professional conduct rules, even though they are not privileged communications.[4][6]

Bottom line

  • Privilege is an evidentiary shield against disclosure.
  • Confidentiality is an ethical duty of nondisclosure that is broader than privilege.
  • Something can be confidential but not privileged; if it is privileged, it is generally also confidential.

Sources & References

  1. 9th Cir. - Ninth Circuit Court of Appeals
  2. in re grand jury. - Ninth Circuit Court of Appeals
  3. 449 US 383
  4. California Rules of Professional Conduct, Rule 1.6
  5. FRE 501
  6. ABA Model Rule 1.6

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