Lessons · Law foundations · confidentiality and privilege
Confidentiality and privilege are two different things
Confidentiality is a duty to keep the matter to yourself; privilege is a rule of evidence that keeps certain communications from having to be handed over at all.
Hone is a place to practise a career, one idea a day. This is one of its lessons, written out in full and free to read without an account.
What it is for
In discovery somebody has to say which documents go over and which do not, and the two ideas get used as one word. A document can be confidential and still have to be produced, and treating the two as the same is how something protected ends up in a bundle.
How to think about it
Ask two separate questions about a document. Who may be told about it, which is confidentiality. And can it be withheld from production, which is privilege, and which has its own conditions.
Worked example
Confidentiality: everything about the matter stays inside the office.It covers the fact of the matter, the names, the papers, the conversation in the lift.
Privilege: a narrower rule about what may be kept back from the other side.It attaches to particular communications, not to a whole file.
A document can be confidential and still have to be produced.The two questions are answered separately, and the second one is the one discovery asks.
Privilege belongs to the person the office acts for, not to the office.It is theirs, so it is theirs to keep or to give up.
Your turn
Privilege protects what passes between the person the office acts for and one other person, about the matter. Write who that is.
Privilege covers what passes between a client and their
Solve one, graded on the server
The trap
Copying a third party into an email about the matter. Bringing somebody outside into the conversation can end the protection for that communication, and it cannot be put back afterwards.