In common language, the terms privilege and confidentiality are often used interchangeably. In the legal profession, these terms have different meanings.
Privilege
- Found in common law
- Protects information from being disclosed despite the information being relevant
- Most common types are settlement privilege, solicitor-client privilege, litigation privilege and case- by-case privilege
- The rules regarding each type of privilege can be found in each jurisdiction’s Civil Procedure Rules and in the common law
Confidentiality
- Found in the Code of Professional Conduct
- Protects information regarding the business and affairs of a client, which they acquired during the professional relationship with the client
- Broader than privilege, as it protects information regardless of where it came from
- Duty owed even to those seeking legal advice or assistance, regardless of whether the lawyer chooses to represent them