For the information security attribute CIA (confidentiality, integrity, and availability), see Information security
Lawyers are often required by law to keep confidential anything pertaining to the representation of a client. The duty of confidentiality is much broader than the attorney–client evidentiary privilege
, which only covers communications
between the attorney and the client.
Both the privilege and the duty serve the purpose of encouraging clients to speak frankly about their cases. This way, lawyers can carry out their duty to provide clients with zealous representation. Otherwise, the opposing side may be able to surprise the lawyer in court with something he did not know about his client, which may weaken the client's position. Also, a distrustful client might hide a relevant fact he thinks is incriminating, but that a skilled lawyer could turn to the client's advantage (for example, by raising affirmative defenses
However, most jurisdictions have exceptions for situations where the lawyer has reason to believe that the client may kill or seriously injure someone, may cause substantial injury to the financial interest or property of another, or is using (or seeking to use) the lawyer's services to perpetrate a crime or fraud.
In such situations the lawyer has the discretion, but not the obligation, to disclose information designed to prevent the planned action. Most states have a version of this discretionary disclosure rule under Rules of Professional Conduct, Rule 1.6 (or its equivalent).
A few jurisdictions have made this traditionally discretionary duty mandatory. For example, see the New Jersey and Virginia Rules of Professional Conduct, Rule 1.6.
In some jurisdictions the lawyer must try to convince the client to conform his or her conduct to the boundaries of the law before disclosing any otherwise confidential information.
Note that these exceptions generally do not cover crimes that have already occurred, even in extreme cases where murderers have confessed the location of missing bodies to their lawyers but the police are still looking for those bodies. The U.S. Supreme Court
and many state supreme courts
have affirmed the right of a lawyer to withhold information in such situations. Otherwise, it would be impossible for any criminal defendant to obtain a zealous defense.
California is famous for having one of the strongest duties of confidentiality in the world; its lawyers must protect client confidences at "every peril to himself [or herself]" under former California Business and Professions Code section 6068(e). Until an amendment in 2004 (which turned subsection (e) into subsection (e)(1) and added subsection (e)(2) to section 6068), California lawyers were not even permitted to disclose that a client was about to commit murder or assault. The Supreme Court of California promptly amended the California Rules of Professional Conduct to conform to the new exception in the revised statute.
Recent legislation in the UK curtails the confidentiality professionals like lawyers and accountants can maintain at the expense of the state.
Accountants, for example, are required to disclose to the state any suspicions of fraudulent accounting and, even, the legitimate use of tax saving schemes if those schemes are not already known to the tax authorities.
Breach of confidence in English law
The "three traditional requirements of the cause of action for breach of confidence":
were identified by Megarry J
in Coco v A N Clark (Engineers) Ltd
(1968) in the following terms:
In my judgment, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene, M.R. in the Saltman case on page 215, must "have the necessary quality of confidence about it." Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.
The 1896 case featuring the royal accoucheur
Dr William Smoult Playfair
showed the difference between lay and medical views. Playfair was consulted by Linda Kitson; he ascertained that she had been pregnant while separated from her husband. He informed his wife, a relative of Kitson's, in order that she protect herself and their daughters from moral contagion. Kitson sued, and the case gained public notoriety, with huge damages awarded against the doctor.
Confidentiality is commonly applied to conversations between doctors and patients. Legal protections prevent physicians from revealing certain discussions with patients, even under oath in court.
This physician-patient privilege
only applies to secrets shared between physician and patient during the course of providing medical care.
The rule dates back to at least the Hippocratic Oath
, which reads: Whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret.
Traditionally, medical ethics has viewed the duty of confidentiality as a relatively non-negotiable tenet of medical practice.
Confidentiality is standard in the United States by HIPAA
laws, specifically the Privacy Rule, and various state laws, some more rigorous than HIPAA. However, numerous exceptions to the rules have been carved out over the years. For example, many American states require physicians to report gunshot wounds to the police and impaired drivers to the Department of Motor Vehicles. Confidentiality is also challenged in cases involving the diagnosis of a sexually transmitted disease in a patient who refuses to reveal the diagnosis to a spouse, and in the termination of a pregnancy in an underage patient, without the knowledge of the patient's parents. Many states in the U.S. have laws governing parental notification in underage abortion.
Due to the EU Directive 2001/20/EC
, inspectors appointed by the Member States have to maintain confidentiality whenever they gain access to confidential information as a result of the good clinical practice
inspections in accordance with applicable national and international requirements.
A typical patient declaration might read:
I have been informed of the benefit that I gain from the protection and the rights granted by the European Union Data Protection Directive and other national laws on the protection of my personal data. I agree that the representatives of the sponsor or possibly the health authorities can have access to my medical records. My participation in the study will be treated as confidential. I will not be referred to by my name in any report of the study. My identity will not be disclosed to any person, except for the purposes described above and in the event of a medical emergency or if required by the law.My data will be processed electronically to determine the outcome of this study, and to provide it to the health authorities. My data may be transferred to other countries (such as the USA). For these purposes the sponsor has to protect my personal information even in countries whose data privacy
laws are less strict than those of this country.
In the United Kingdom information about an individual's HIV status is kept confidential within the National Health Service
. This is based in law, in the NHS Constitution and in key NHS rules and procedures. It is also outlined in every NHS employee's contract of employment and in professional standards set by regulatory bodies.
The National AIDS Trust's Confidentiality in the NHS: Your Information, Your Rights
outlines these rights. All registered healthcare professionals must abide by these standards and if they are found to have breached confidentiality, they can face disciplinary action.
A healthcare worker shares confidential information with someone else who is, or is about to, provide the patient directly with healthcare to make sure they get the best possible treatment. They only share information that is relevant to their care in that instance, and with consent.
There are two ways to give consent: explicit consent or implied consent. Explicit consent is when a patient clearly communicates to a healthcare worker, verbally or in writing or in some other way, that relevant confidential information can be shared. Implied consent, means that a patient's consent to share personal confidential information is assumed. When personal confidential information is shared between healthcare workers, consent is taken as implied.
If a patient doesn't want a healthcare worker to share confidential health information, they need to make this clear and discuss the matter with healthcare staff. Patients have the right, in most situations, to refuse permission for a health care professional to share their information with another healthcare professional, even one giving them care—but are advised, where appropriate, about the dangers of this course of action, due to possible drug interactions.
However, in a few limited instances, a healthcare worker can share personal information without consent if it is in the public interest. These instances are set out in guidance from the General Medical Council,
which is the regulatory body for doctors. Sometimes the healthcare worker has to provide the information - if required by law or in response to a court order.
Clinical and counseling psychology
Some legal jurisdictions recognise a category of commercial confidentiality whereby a business
may withhold information on the basis of perceived harm to "commercial interests".
For example: soft drink giant Coca-Cola
's main syrup formula remains a trade-secret
Public policy concerns
Confidentiality agreements that "seal" litigation settlements
are not uncommon, but this can leave regulators and society ignorant of public hazards. In the U.S. state of Washington, for example, journalists discovered that about two dozen medical malpractice cases had been improperly sealed by judges, leading to improperly weak discipline by the state Department of Health.
In the 1990s and early 2000s, the Catholic sexual abuse scandal
involved a number of confidentiality agreements with victims.
Some states have passed laws that limit confidentiality. For example, in 1990 Florida passed a 'Sunshine in Litigation' law that limits confidentiality from concealing public hazards.
Washington state, Texas, Arkansas, and Louisiana have laws limiting confidentiality as well, although judicial interpretation has weakened the application of these types of laws.
In the U.S. Congress, a similar federal Sunshine in Litigation Act has been proposed but not passed in 2009, 2011, 2014, and 2015.
- ^ Morgan, Thomas D. (1980). "Conflicts of Interests and the Former Client in the Model Rules of Professional Conduct". American Bar Foundation Research Journal. 5 (4): 993–1002. doi:10.1111/j.1747-4469.1980.tb01046.x. ISSN 0361-9486.
- ^ International Bar Association. "IBA International Principles on Conduct for the Legal Profession"(PDF). Retrieved 9 March 2021.
- ^ Campbell v MGN Ltd  UKHL 22,  2 AC 457.
- ^ Coco v A N Clark (Engineers) Ltd  RPC 41;  FSR 415.
- ^ Dally, Ann. "Playfair, William Smoult". Oxford Dictionary of National Biography (online ed.). Oxford University Press. doi:10.1093/ref:odnb/35541. (Subscription or UK public library membership required.)
- ^ a b Dr. Coburn's Peculiar Privilege, 2 October 2009
- ^ Beltran-Aroca, Cristina M.; Girela-Lopez, Eloy; Collazo-Chao, Eliseo; Montero-Pérez-Barquero, Manuel; Muñoz-Villanueva, Maria C. (2 September 2016). "Confidentiality breaches in clinical practice: what happens in hospitals?". BMC Medical Ethics. 17 (1): 52. doi:10.1186/s12910-016-0136-y. ISSN 1472-6939. PMC 5009672. PMID 27590300.
- ^ Notification Laws Archived 29 April 2009 at the Library of Congress Web Archives
- ^ AR Waladkhani. (2008). Conducting clinical trials. A theoretical and practical guide. ISBN 978-3-940934-00-0
- ^ "Professional Standards Authority - Home". www.nhs.uk. Retrieved 17 March 2018.
- ^ "Publications - National AIDS Trust - NAT"(PDF). www.nat.org.uk. Retrieved 17 March 2018.
- ^ "GMC - Confidentiality". gmc-uk.org.
- ^ For example: Paradissis, Jean-Jacques; Purdue, Michael (2007). "Access to Environmental Justice in United Kingdom Law". In Harding, Andrew (ed.). Access to Environmental Justice: A Comparative Study. The London-Leiden Series on Law, Administration and Development. 11. Martinus Nijhoff Publishers. p. 293. ISBN 9789004157835. Retrieved 20 October 2015. Commercial confidentiality is usually defined by reference to commercial interests of the person concerned: if disclosure can 'prejudice to an unreasonable degree' commercial interests, then it must not be permitted.
- ^ "What the state didn't know about doctor, malpractice suit". The Seattle Times. 13 December 2006. Retrieved 20 March 2016.
- ^ Goodstein, Laurie (27 June 2002). "Albany Diocese Settled Abuse Case for Almost $1 Million". The New York Times. ISSN 0362-4331. Retrieved 21 March 2016.
- ^ "Confidentiality in Settlement Agreements Is Bad for Clients, Bad for Lawyers, Bad for Justice". www.americanbar.org. Retrieved 20 March 2016.
- ^ ""Quality, Not Quantity: An Analysis of Confidential Settlements and Lit" by Alison Lothes". scholarship.law.upenn.edu. Retrieved 20 March 2016.
- ^ Fan, Mary D. (18 September 2015). "Private Data, Public Safety: A Bounded Access Model of Disclosure". SSRN 2662678.
Last edited on 14 May 2021, at 21:11
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