Although confidentiality and privacy are often used interchangeably, they are legally different. Confidentiality is an ethical duty that prevents certain people from sharing information with third parties. Privacy is the right to freedom from intrusion into one's personal matters or information. Privacy has roots in common law and the Fourth Amendment to the U.S. Constitution.
This article explains the differences between confidentiality and privacy.
In the legal realm, confidentiality refers to “the relation between lawyer and client which guarantees any information shared by the client is treated as private and as such cannot be divulged to third parties without the client's consent." This is known as the attorney-client privilege.
Attorneys have an ethical duty to keep their clients' information confidential. This is known as the duty of confidentiality. Laws and ethical rules protect the disclosure of information to your attorney. Thus, whether you are pursuing a personal injury claim or defending against criminal charges, the information you discuss with your attorney is confidential.
When a professional holds information “in confidence," expect it to remain confidential unless you say otherwise. Additionally, expect your attorney to only share the information with authorized individuals. Most confidentiality agreements, either written or implied (as with attorney-client privilege), remain in effect indefinitely.
There are many ways an attorney may breach attorney-client privilege. An attorney may breach attorney-client privilege if they do one of the following:
- Share or describe their client's medical records, assuming it is an unauthorized dissemination
- Unauthorized disclosure of the details of their client's case
- Disclose a crime victim's description of, for example, domestic violence or child abuse
- Reveal the details of a defendant's ongoing criminal case or criminal prosecution—without their permission—assuming it is not a public record
Court rules may allow attorneys to disclose such information. However, the American Bar Association tends to lean on the side of maintaining confidentiality. Even confidential information appearing in a public record may still not be disclosed by an attorney in some cases. An attorney's unauthorized disclosure of this information may result in professional penalties or sanctions.
Confidentiality in Other Professions
The doctor-patient relationship establishes an implied contract of confidentiality. A doctor is in a position to help you by collecting and analyzing otherwise private information. If the doctor asks a pharmacist to fill a prescription for a drug known to treat a serious form of cancer, for example, it would not be a breach of confidentiality. But if the doctor were to tell your boss that you are terminally ill, that would be a breach of their ethical duty.
The following institutions and professionals regularly handle confidential information:
These professionals often have specific rules, regulations, or state statutes for handling confidential information. Others protect confidential information by contract. Releasing confidential information or records violating these rules or contracts may result in civil or criminal penalties.
Generally, an action is private if you have a reasonable expectation of privacy while doing the action. Examples of activities considered private might include:
- A medical examination
- Activities within your home
- Using a public restroom
- Entering the office of a reproductive health provider
Most things done in public places are not considered private. Privacy laws, however, leave a substantial gray area as to what "public" means.
Fourth Amendment: The Reasonable Expectation of Privacy
The Fourth Amendment to the U.S. Constitution protects against searches that violate your reasonable expectation of privacy. This expectation of privacy is loosely defined as something for which society as a whole would consider legitimate.
Generally, you have a reasonable expectation of privacy in the following:
- Your home
- Your office (if closed to the public)
- Most mail sent or received through the U.S. Postal Service
- Your motor vehicle (although you have less privacy in your vehicle than your home)
You have a more limited expectation of privacy in public places. For example, suppose you get in a car accident, and the local news sends out a reporter. You most likely do not have a claim against the news station for identifying you or broadcasting it on the news. Because the event is newsworthy and happened in public, you likely do not have a reasonable expectation of privacy.
The 1967 Supreme Court case Katz v. United States (1967) held that the government may not record a conversation made from a public phone booth (with the glass door shut), even if the recording device is on the outside. In this case, the individual making the call has a reasonable expectation of privacy.
Invasion of Privacy
An invasion of one's privacy occurs when a person or entity intrudes on a person's reasonable expectation of privacy.
An invasion of one's privacy could raise one of the following claims in tort law:
- Intrusion of solitude
- Appropriation of name or likeness
- Public disclosure of private facts
- False light
Most U.S. jurisdictions allow civil lawsuits for invasion of privacy. State law generally controls the specifics of such claims.
Need Help With a Confidentiality or Privacy Matter? Contact an Attorney
Confidentiality between the professional and client or patient is paramount in a legal or medical setting. Confidentiality allows the person seeking help to explain their issue without fear of its disclosure. The public interest in protecting confidential information is essential to understand when working with professionals.
A reasonable expectation of privacy is a right Americans hold dear. Citizens expect a certain degree of confidentiality and privacy in their homes, offices, and U.S. mail. When one violates your privacy, you may need to take legal steps.
If you believe a person or entity violated the safeguards of privacy or confidentiality, contact a local criminal defense attorney. An experienced attorney can provide you with specific legal information regarding the following:
- If a legal professional unlawfully disclosed information about your criminal case, criminal proceedings, criminal prosecution, or criminal charges
- General information about the criminal justice system, criminal law, criminal records, and public records
- Specific information about a law enforcement agency's actions toward you
- Defense and litigation strategy about your pending felony, misdemeanor, or citation
- Legal advice about a specific court order or contract
If you have a legal dispute, consider contacting a criminal defense lawyer near you.