Beach Balls, Confidentiality, And Privilege: What Lawyers Need To Know To Build Trust With Clients
Understanding the fundamentals of privacy, confidentiality, and privilege in your work with clients can help build trust, strengthen your relationships, and improve your advocacy.
On October 5, Practising Law Institute will host Building Trust: Client Confidentiality and Attorney Privilege, a live, interactive webcast featuring a new interface with advanced learning and engagement tools. Program Speaker Alicia Aiken, Director of the Danu Center’s Confidentiality Institute and a Principal at the Danu Center for Strategic Advocacy, explains why attorneys will benefit from this one-of-a-kind program.
What is the program about and who is it for?
Building Trust is about getting back to the fundamentals — in a way that we didn’t all get in law school. We haven’t always done a great job in training lawyers on these basics: How do we think about information when we work with clients? How do we think about who owns it, who controls it, and who decides when we use it or when we don’t? The idea is to go back to the fundamentals of privacy, confidentiality, and privilege, to pull those three strands apart, and understand how we use them to improve the client relationship and get a better outcome.
This program is focused on the individual client-lawyer relationship, not on the issues that arise when representing a corporation. That said, there is nothing different about representing an individual on an eviction or on buying a $4 million home. Either way, you’re working with a person, making them promises and building a relationship.
What are some misconceptions attorneys have about these issues?
One of the pitfalls is confusing confidentiality and privilege. Confidentiality is a pretty broad requirement that prevents a lawyer from voluntarily sharing most of what an attorney and a client talk about when they work together. Privilege says neither the attorney nor the client can be forced to share something in court — a narrower rule. Many lawyers tend to conflate the two. This affects how we work with our clients in a really practical way.
Can you tell us about your beach ball analogy?
Think about an empty beach ball — as a lawyer, you’re handing it to your client and saying, “Tell me things that would help me to represent you.” In sharing with you, they’re choosing how much to blow up, when to put a cap on it and hand it to you; your duty is to protect it. Think about how easy it is to lose track of a beach ball; if you’re careless, it’s out in the ocean in no time. That’s the client’s privacy.
With confidentiality, you’re going to protect the beach ball, and you’ll talk with the client before you decide to let any air out. Once you let the air out, it’s gone — you can’t get that control back.
Privilege is if somebody official like a police officer or a judge comes along and tries to take the ball away. You and the client get to say no; you can’t be punished. But if the client says, “actually, give them the ball,” you would hand it over, because the privilege doesn’t belong to the lawyer — even if the lawyer thinks handing it over is a terrible idea. These are important elements of your relationship with the client from the beginning.
What are the consequences of not knowing how to handle client information?
If your clients don’t trust you, they’re not going to tell you things. In the most extreme example, from my experience of working with domestic violence survivors, I know this can have tragic consequences. These are clients who have experienced the most extraordinary breach of trust in their most intimate relationships. They are endangered often because somebody who knows them incredibly well is trying to hurt them, and now they just don’t trust – and they may have good reason not to. As a lawyer, if I don’t communicate the principles of privacy and confidentiality correctly, a client can end up feeling betrayed by the way in which I manage their information, even when I’m technically following the ethical rules.
When clients feel they’ve been treated like people with value, they’re more likely to be satisfied with the outcome of their work with you, whether they win or lose their issue.
Are there other reasons attorneys should take this program?
We all know that Ethics credits can be a challenge. This is the least boring Ethics credit you can get during the pandemic – or any time, really! PLI has done a great job, even before we all went remote, of adapting its content online, with interactive features like quizzes and real-time Q&As. Plus there are cartoons! I think this program effectively mixes the law and the theory of privacy with practical, actionable things you can do in your practice – the afternoon after you take the course.
Learn more and register for PLI’s program: Building Trust: Client Confidentiality and Attorney Privilege
About PLI
Practising Law Institute is a nonprofit learning organization dedicated to keeping attorneys and other professionals at the forefront of knowledge and expertise. PLI is chartered by the Regents of the University of the State of New York and was founded in 1933 by Harold P. Seligson. The organization provides the highest quality, accredited, continuing legal and professional education programs in a variety of formats which are delivered by more than 4,000 volunteer faculty including prominent lawyers, judges, investment bankers, accountants, corporate counsel, and U.S. and international government regulators. PLI publishes a comprehensive library of Treatises, Course Handbooks, Answer Books and Journals also available through the PLI PLUS online platform. The essence of PLI’s mission is its commitment to the pro bono community. View PLI’s upcoming live webcasts here.
