Professionals in fields such as healthcare, psychology, and social work, along with lawyers who represent or prosecute them, are generally aware of the responsibility to keep information about clients confidential and to avoid disclosing the contents of privileged communication. However, most tend to use the terms “confidentiality” and “privileged communication” interchangeably, without being aware that there is a subtle distinction between these terms. This distinction is important and can have practical implications when professionals are called upon in legal cases involving their clients.

Privileged Communication

In a legal context, some forms of communication are considered “privileged.” This means that the court system recognizes a private, protected relationship between the parties involved, where their communications are confidential, and the courts cannot force the disclosure of their contents. Examples of privileged communication recognized in many legal jurisdictions include:

  • Attorney-client privilege, involving private conversations between lawyers and those they represent.
  • Spousal conversations, as in the case where one spouse cannot be compelled to testify against another.
  • Healthcare communications between professionals such as physicians, psychologists, and social workers and their patients or clients.

What Are Privileged Communication Statutes?

Privileged communication statutes are rules that protect certain communications from being used in a court of law. This is intended to protect people from divulging information or communications that could result in a harmful legal judgment. Certain relationships and contexts are specifically protected. There are three conditions that, must be in effect before these statutes activate:

  • Protected relationship: The people involved must be in a relationship recognized and protected by the law.
  • Privacy: Communication must have happened in a private setting where both parties can expect to reasonably have privacy for their communications.
  • Not shared: Sharing the information with someone else who isn't part of the protected relationship voids the privileged status of information.

The purpose of privileged communications statutes is to protect relationships such as husband/wife, attorney/client, and physician/patient relationships that are expected to have privacy and a certain level of intimacy.

What is 'Communications with Expert Witnesses Privilege?'

Communication with expert witnesses privilege means that conversations between attorneys, expert witnesses, and clients have an expectation of privacy as long as certain conditions are met. In practice, for these communications to remain protected, conversations generally occur in specific places such as personal offices and homes. Privacy is one of the main conditions that must be in place for conversations to be considered privileged. If any part of privilege is violated, then the conversation is no longer protected. Conversations can also occur via communications software.

Confidentiality in Counseling

Confidentiality in counseling can be defined as the legal and ethical duty counselors have to their clients not to reveal information about them to unauthorized individuals. By the same token, clients have a right to expect their counselors not to disclose information about them without their consent. This right is rooted in clients' fundamental right to personal autonomy and their derived right to privacy. Clients’ right to confidentiality is protected by ethical codes of conduct defined by organizations such as the American Psychological Association, as well as by legal statutes. Counseling information that is considered confidential falls into two categories:

Contact confidentiality: Counselors are ethically obligated not to disclose the fact that a client is seeing them.

Content confidentiality: Counselors are legally obligated not to disclose information discussed during counseling sessions.

Unauthorized disclosures of confidential information are considered contract breaches unless clients authorize the disclosure of confidential information by voluntarily waiving their right to confidentiality. There are other exceptions that limit the obligation to confidentiality. For instance, counselors may in some circumstances need to disclose information to supervisors and others involved in treating a client, or to parents or guardians of minor clients.

The Essential Difference between Privileged Communication and Confidentiality in Counseling

Confidentiality can be defined in terms of a counselor’s duty not to disclose information about their client, while privileged communication in a counseling context can be defined in terms of a client’s privilege not to have their counselor disclose information about them in a legal setting such as a court of law. For instance, the contents of therapy sessions are privileged information that a counselor may generally not disclose in court without permission. As such, privileged communication has a narrower scope than confidentiality, referring specifically to communication protected from unauthorized disclosure in a legal setting.

Attorney-Client Privileged Communication

The relationship between a client and an attorney is critical to effective representation since a client should feel able to confide in an attorney. Under the evidentiary rules of most jurisdictions in the United States, information shared between a client and attorney is privileged communication. In a trial setting, a party's lawyer generally cannot be required to testify against or in support of the case. Some examples of privileged communication in an attorney-client relationship include:

  • Statements made in a criminal defense case
  • Negotiations in a business matter
  • Any other communication that is part of an attorney-client relationship

Attorney-client confidentiality is based on the client’s expectation that their communications with an attorney will be kept private, and if an attorney discloses information without consent, it is a breach of ethical duty. A simple example of a confidentiality breach would be an attorney discussing the details of a client's personal affairs with another client.

Attorney-client confidentiality can be broader than privilege, as it generally prohibits an attorney from disclosing any information from the client or about the client that is derived as part of the attorney-client relationship.

How Communications Technology Impacts Confidentiality and Privileged Communication

The responsibility of professionals to protect client confidentiality and privileged communication has a direct bearing on what communications technology they use to do business.

For healthcare professionals and lawyers who handle healthcare information, HIPAA regulations must be considered when using cloud services. Professionals are responsible for choosing service platforms and providers which meet HIPAA standards.

The American Bar Association's Model Rules, which provide ethical guidance for attorneys, now state that the attorneys should not only be competent in the legal areas in which they practice but also in the technologies used for communicating with clients. In other words, lawyers can avail themselves of modern communications tools but need to ensure that technology follows data security practices.

In particular, hackers present a risk to cloud-based communications tools such as email, texting, chat, Voice over Internet Protocol (VoIP) phone services, unified communications as a service (UCaaS), and contact center as a service (CCaaS) that provide multi-channel means of communication. Professionals using these types of services must take adequate security steps to secure them against unauthorized users. Luckily, these services also provide enterprise-level cloud security.

8x8's unified communications can be tailored specifically for the legal profession, so lawyers can stay connected with clients in the cloud and elsewhere without relinquishing security for privileged and confidential information. With best-in-class data security from 8x8, you can rest assured that you have satisfied the competency requirement of legal ethics.

When it comes to ensuring legal communication, 8x8 provides support for privileged and confidential communications with the highest levels of data security. Don't take your chances with a cloud-based telecom system that doesn’t understand secure communications. Call 1-855-425-9608 or fill out an online form to request a no-obligation quote from an 8x8 product specialist.

Related Topics

Ethical Issues in Communication

Privilege Communication in Healthcare

Legal Aspect of Business Communication