The lawyer-client relationship has historically been characterised as one of confidence. This duty also constitutes part of the broader foundation for lawyer's fiduciary duties to their clients.
Rationale for the duty
The maintenance of full and frank disclosure between lawyers and their clients is the main justification for the duty of confidentiality. It allows clients to freely discuss intimate details without fear that such information could be subsequently disclosed to the general public. In turn, public confidence in lawyers and the legal system is maintained and promoted. Further, the duty of confidentiality is a constant reminder to lawyers of the loyalty they owe to their clients.
Source of the duty
The duty is sourced from a combination of contract law and equity arising from the distinctive relationship between lawyer and client. In contract, the duty arises from terms contained in the retainer agreement. Complementarily, equity prohibits unauthorised use or disclosure of confidential information. In most jurisdictions, the duty is codified in the terms of legal professional rules.
Although the duty of confidentiality and fiduciary duties have common origins, they cannot be equated as not all fiduciary duties attract duties of confidentiality and vice-versa.
Duty of Confidentiality
In common law jurisdictions, the duty of confidentiality obliges a solicitor to respect the confidentiality of his or her client's affairs. Information that a solicitor obtains about his or her clients' affairs may be confidential, and must not be used for the benefit of persons not authorised by the client. Confidentiality is a prerequisite for legal professional privilege to hold.
Adversarial System
The adversarial system (or adversary system) of law is the system of law, generally adopted in common law countries, that relies on the skill of each advocate representing his or her party's positions and involves a neutral person, usually the judge, trying to determine the truth of the case. The inquisitorial system usually found on the continent of Europe among civil law systems (i.e., those deriving from Roman law or the Napoleonic Code) has a judge (or a group of judges who work together) whose task is to investigate the case. The adversarial system is the two-sided structure under which American criminal trial courts operate that pits the prosecution against the defense. Justice is done when the most effective adversary is able to convince the judge or jury that his or her perspective on the case is the correct one.
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