Isn't 'confidentiality' misnamed, when it's not confidential compared to solicitor-client privilege?

Question

Though for Canadian law, Robin Nobleman JD (Osgoode) spotlights that:

This difference means that while all communications between a lawyer and his/her client are confidential, not all communications are privileged such that they would be protected from disclosure in a lawsuit.

So if confidential, non-privileged information can be compelled for disclosure, then how can it be termed "confidential"? 'Confidentiality' feels like a too forceful misnomer.

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Details. Optional Reading.

Neil Guthrie DPhil English (Oxon), LLB (Toronto). Guthrie’s Guide to Better Legal Writing (2017).

p. 39 Bottom

2) E-mail Disclaimers

Nerd alert: I love assessing the e-mail disclaimers that individual lawyers and law firms use, especially as they relate to matters priv-ileged and confidential.
   The laziest of these notices merely assert that the content of the e-mail is privileged and confidential. But wait, you're my lawyer

p. 40

friend and you've just asked me by e-mail if I'm free for a beer on Friday. That's privileged and confidential? Of course it isn't. In most cases, this isn't an issue, but on a big litigation file you might find yourself struggling before a judge to say why something con. tentious is privileged and confidential when it becomes apparent that you routinely slap the disclaimer on everything you send, drink invitations included.
   A bit more thoughtful is the disclaimer that the contents of the e-mail may be privileged and confidential. But only a bit; you've admitted that not everything a lawyer sends will be privileged or confidential, but it still looks like you haven't thought about whether the actual communication is or not. This isn't better than saying everything's privileged and confidential, if push comes to shove.
   It is preferable to have no boilerplate disclaimer at all, and to label something as privileged and confidential when it truly is, in the subject line of the e-mail and at the top of the underlying message, as well as in the fine print underneath. Putting this into practice would be a nuisance, however —and would require some thought.
   And you must think about whether what you send is privileged at all: I think it drove a former general counsel boss of mine crazy when I identified information as confidential only, but I was cor-rect as a matter of law; only actual legal advice is privileged, not facts or even suggestions for your readers to consider legal issues and reach their own conclusions.

Ashurst explains that confidentiality is a necessary, but not sufficient, condition for privilege:

However, while confidentiality is an essential ingredient of a privileged communication, just because a document is confidential does not necessarily mean it is also privileged.

Herbert Smith Freehills presents a helpful decision tree on p. 2 of the PDF:

Paul Stone BA Hons Jurisprudence (Oxon), Partner at DLA Piper, offers another decision tree.

Answer 1

Confidential is simply a less "forceful" name than "privilege".

If something is "confidential", this means that the recipient won't voluntarily blab it. This covers a multitude of sins. The rubric I was taught in law school is that even the front page headline of the New York Times if it relates to your case, it is confidential, because you don't want to tip off an adversary who may not have read that paper that day for some reason to the disadvantage of your client.

If something is privileged, you can't be compelled to do so involuntarily. A "privilege" is a more "forceful" word.

In practice, most stuff that you have a legitimate need to keep secret in the face of compulsory evidence gathering tools are privileged, and confidential matters not covered by a privilege are kept that way because it is best practice not to be source of an opponent's discovery of information and not because it can't be found any other way from something that someone has a legitimate reason to keep secret from someone in a lawsuit or criminal case (which is the main circumstance when privileges are invoked).

Answer 2

Confidential

Confidentiality imposes an obligation on the person holding the confidence not to disclose it. If they do, they can be sued.

A confidence can be created through:

• a contract, either as an explicit or implied term. For example, an employee has a contractural obligation not to disclose confidential information of their employer.
• through a fiduciary duty. For example, a company director cannot disclose confidential information belonging to the company.
• as part of an agency. For example, a lawyer or banker cannot disclose information given to them by their clients (or even that they are their clients).
• by statute. For example, privacy laws in many jurisdictions.

Confidences may be unilateral (e.g. discussions between a doctor and a patient are confidential on the doctor - the patient can tell whoever they like) or bilateral (e.g. negotiations for the sale of a business).

Revealing confidential information gives rise to the tort of breach of confidential information (simply named). To establish the tort the following must be proved:

1. The information must be secret or confidential - knowledge in the public domain (not including knowledge flowing from the alleged breach) is not confidential.
2. It must be imparted where the recipient knew or should have known it was confidential.
3. There must be unauthorized use or disclosure to the detriment of the person communicating it.

Confidential is not the same as ...

Privileged

Privileged information is not available to be used as evidence in a court.

This is true even if it never was or is no longer confidential.

If a court subpoenas privileged information there is no obligation to disclose it, however, there is an obligation to disclose non-privileged information irrespective of if it is confidential or not - indeed not disclosing it will put you in contempt. You can require other parties to respect the confidential nature of the information and sue them if they breach it. You can ask that the court do the same but if they do or not is up to the court. This is one reason why many businesses prefer confidential arbitration over litigation.

Answer 3

In England and Wales client-lawyer communications are privileged if they are for the purpose of obtaining or giving legal advice or if they are in contemplation of litigation.

A large number of communications between lawyer and client will fall within one or other of these categories but not necessarily all.

If your lawyer is doing the conveyancing for a house purchase some of the communications may be purely factual and not be in the context of advice, so that while those are confidential they might not be privileged.

If a communication is not privileged and is therefore "just" confidential that still has some significance. For example

1. The court orders disclosure of documents in a particular category.

2. You do not want to disclose a particular communication which is apparently within that category so you instruct your lawyer to apply to the court to vary the order.

3. The court refuses to vary the order.

You then have these choices:

A. To comply with the court's order

B. To appeal against the court's order

C. To disobey the court's order

If you choose C then your lawyer will have to withdraw from the case but the lawyer will not themselves disclose the communication - this is because of the duty of confidentiality.