Confidentiality Study Guide

📖 Core Concepts Duty of confidentiality – a lawyer’s ethical promise to keep client information private, broader than the attorney‑client privilege (which shields only communications). Attorney–client privilege – evidentiary rule that prevents a client’s communications with counsel from being disclosed in court. Scope of the duty – applies to any information a client entrusts the lawyer, not just legal advice. Purpose – encourages full client disclosure, enabling effective representation and preventing surprise attacks by opponents. Professional‑conduct rules – e.g., Rule 1.6 (U.S.) codifies the duty and its limited exceptions. Confidentiality vs. privilege – confidentiality protects all client‑related information; privilege is a court‑room protection. 📌 Must Remember Three elements of a breach of confidence (English law): (1) information has the quality of confidence, (2) it was imparted under an obligation of confidence, (3) unauthorized use causes detriment. Key exceptions for lawyers – imminent serious bodily harm, substantial financial injury, and use of services to commit crime/fraud. HIPAA Privacy Rule – national baseline for medical confidentiality in the U.S.; permits disclosures for public‑health reporting, mandatory injury reporting, and court orders. Psychology “duty to warn/protect” – suicide, homicide, child/elder/ dependent‑adult abuse. Accountants – must report suspected fraud or undisclosed tax‑saving schemes to the state. Banking secrecy – confidential unless information is shared with affiliates without permission. Public‑policy limits – sealed settlement confidentiality can be overridden when it hides hazards to regulators or the public. 🔄 Key Processes Lawyer’s Discretionary Disclosure Process Identify a potential exception (harm, crime, fraud). Counsel the client to desist or remedy the conduct (where jurisdiction requires). If the threat persists, disclose limited information to prevent the harm. HIPAA Disclosure Workflow (U.S.) Determine if the request falls under a permitted purpose (treatment, payment, health‑care operations, public‑health reporting, law enforcement, etc.). Verify the minimum necessary standard. Document the disclosure (who, what, why, when). ETHIC Model for Psychologists Examine values & relevant law. Talk with colleagues / consult standards. Hypothesize possible actions. Identify beneficiaries & harms. Consult supervisors before final decision. 🔍 Key Comparisons Confidentiality vs. Privilege – Confidentiality: ethical duty covering all client info; Privilege: evidentiary rule protecting only communications in litigation. Discretionary vs. Mandatory Exceptions (Law) – Discretionary: lawyer may, but does not have to, disclose (e.g., threat of future harm). Mandatory: statutes require reporting (e.g., gunshot wounds under state law). Medical Confidentiality (HIPAA) vs. State Reporting Laws – HIPAA: federal baseline, limits disclosures. State laws: may impose additional mandatory reports that override HIPAA’s privacy shield. ⚠️ Common Misunderstandings “All crimes must be reported” – Only future or ongoing criminal conduct that threatens harm is an exception; past crimes (e.g., murder confession) remain protected. “Attorney‑client privilege equals confidentiality” – Privilege is narrower; confidentiality covers non‑communicative information (e.g., client’s financial records). “HIPAA allows any health information to be shared with law enforcement” – Only permitted under specific statutory exceptions and must follow the minimum‑necessary rule. 🧠 Mental Models / Intuition “Safety Net” model – Think of confidentiality as a net that catches all client info; the privilege is a smaller pocket within the net that only stops the net from being pulled in court. “Red‑Flag Trigger” – Whenever a client mentions imminent serious harm, substantial financial injury, or use of services for crime, a red‑flag appears and initiates the disclosure decision process. 🚩 Exceptions & Edge Cases Imminent harm vs. past harm – Only threats of future injury trigger the duty to disclose; retrospective admissions (e.g., a murder confession) do not. Affiliates in banking – Confidentiality does not automatically extend to bank affiliates unless expressly allowed. International data regimes – EU’s Data Protection Directive imposes stricter consent and purpose‑limitation rules than U.S. HIPAA; cross‑border disclosures must satisfy the stricter regime. 📍 When to Use Which Choose confidentiality analysis → start with the general duty; if a conflict arises, test the exception list (harm, financial injury, crime/fraud). When evaluating a medical disclosure → apply HIPAA first; if a state mandatory‑reporting law applies, it overrides HIPAA’s privacy restriction. In psychology cases → use the ETHIC model to decide whether the “duty to warn/protect” exception applies. Banking queries → assume secrecy unless the information is being shared with an affiliate or a legal subpoena is presented. 👀 Patterns to Recognize “Threat + Professional Service” – client threatens harm while using the professional’s services → likely an exception. “Public‑health trigger language” – mentions of STDs, under‑age abortions, or gunshot wounds → expect mandatory reporting. “Trade secret language” – references to proprietary formulas or competitive advantage → commercial confidentiality claim likely. 🗂️ Exam Traps Distractor: “All criminal confessions must be reported.” – Wrong; only future threats, not past crimes, trigger disclosure. Distractor: “Attorney‑client privilege protects financial records.” – Incorrect; privilege covers communications, not underlying data. Distractor: “HIPAA always trumps state law.” – False; state mandatory‑reporting statutes can require disclosure despite HIPAA. Distractor: “Banking secrecy is absolute.” – Misleading; does not cover disclosures to affiliates or when required by law. Distractor: “The ETHIC model is only for psychologists.” – Partially true; it is a psychology‑specific decision‑making tool, not a universal rule for all professions.