It seems to me that these two terms may be completely different and yet they often seem to be used in an interchangeable and anyway an overlapping manner.

Under data protection laws, data controllers are obliged to ensure there is generally no disclosure to third parties of data by which a subject may be personally identified. Likewise, by professional ethics, doctors, and I suppose also lawyers, are bound to keep their clients’ information confidential.

Yet privilege seems to me you mean something entirely different, but my question is whether I am wrong about this: privilege seems to mean that regardless of who in the actual world Information is disclosed or shared to, it cannot in any event be admitted in court because of the privilege nature of the information. But that doesn’t seem to require it to be confidential. Although I think that by treating it as unconfidential and disclosing it to others widely outside of the privileged relationship this may have the effect of waiving the privilege, yet these two concepts would still seem to remain nevertheless distinct even if in this way related.

Is that right?

2 Answers 2


The terms confidential and privileged are not interchangeable, but they have closely related meanings that pertain to secrets. Both terms are, indeed, often misused when the other term would be the correct one.

If the information that has been provided to a person is confidential, either by virtue of the nature of the relationship involved (e.g. attorney and client, or psychotherapist and patient), or by statute (HIPPA information that a doctor's office encounters, or tax information that an IRS agent encounters, or grand jury information), or by contract (someone signs a non-disclosure agreement), then the person who receives the confidential information has a duty to not voluntarily disclose the information (without the permission of someone with a right to authorize the disclosure of this information).

Often someone with confidential information can't disclose that information even if the information has already been made public, because disclosing the information would corroborate its truth, while the source that made the information public might be an unreliable or not credible source.

In all U.S. jurisdictions, an attorney's duty of confidentiality arises from Rule of Professional Conduct 1.6, although, despite a uniform numbering system for these professional ethics rules for attorneys, there are important substantive law differences in the wording of this rule between U.S. jurisdictions, which are mostly related to scope of the "crime-fraud" exception to an attorney's duty of confidentiality.

If information is privileged, then a court can't compel the person who has the information to disclose that information, and a court can't allow that information to be used in a court proceeding, without the permission of the person who holds the privilege (usually, the person who provided the information or who is the "customer/patient" in the relationship). The term "privilege" in this sense of the word is also, more precisely, called an "evidentiary privilege."

In U.S. law, most evidentiary privileges are created by statutes or court rules, but a few arise at common law in some jurisdictions (including most privileges in federal court cases), and originally, all evidentiary privileges in the common law tradition arose from judge made common law.

Examples Illustrating The Differences Between These Terms

Lots of information that is confidential is also privileged, but not all information that is confidential is privileged.

For example, while information provided to a lawyer in confidence related to a client's case is both privileged and confidential, information that is covered by a non-disclosure agreement is confidential but is not privileged.

As another example, information a lawyer has about a client that is not obtained in a confidential communication from the client, such as information about a client gained from public domain sources, or information about a client obtained from opposing counsel in a lawsuit, is confidential, but isn't privileged. The lawyer can't voluntarily disclose that information, but a court can compel a lawyer to testify about or disclose that information.

Under data protection laws, there is a confidentiality duty imposed upon data controllers who are obliged to ensure there is generally no disclosure to third parties of data by which a subject may be personally identified. But, most data protected by data protection laws is not privileged. A court can, in most circumstances, order that a data controller produce information by which a subject may be personally identified in connection with a court case such as a criminal prosecution.

Sometimes information that is privileged is not confidential because the person who has the information does not have a legal duty to refrain from voluntarily disclosing it to others outside of court proceedings.

For example, if you told your ex-wife in private, while the two of you were married, that you had an affair with your teenage cousin when you were a kid, that is privileged information that a court cannot compel her to disclose in a court proceeding, or allow her to disclose in a court proceeding, over your objections. But you cannot sue her for violating a legal duty to you if she voluntarily tells one of her friends what you told her, and this damages your reputation or causes you to lose a potential business deal. She does not have a general legal duty to treat this information as confidential.

Situations where information is confidential but not privileged, or privileged but not confidential, often lead to serious moral or ethical or relationship dilemmas, even when no one's legal rights are violated.

Other Meanings Of These Words Distinguished

Of course, words have multiple senses, and often words even have multiple distinct legal meanings.

There are senses of the word "privilege" that are completely unrelated to confidentiality. An active duty soldiers has a privilege to board a commercial airplane before ordinary economy class passengers (as a matter of universal airline policy, not as a matter of law). A duke has a privilege to have an audience with a monarch. A diplomat has a privilege not to be arrested in the country that has received the diplomat. A parent of a minor has a privilege to approve or disapprove a request of a minor child to marry in many jurisdictions. But the other senses of the word seem to be beyond the scope of this question.

Similarly, the word "confidential" also has multiple legal senses, some of which are not related to not disclosing information. A "confidential relationship" is a non-professional relationship with a close friend or family member or advisor that is not rooted in any formal relationship of legal importance, which has nothing to do with keeping secrets. If you are in a confidential relationship with someone, you have a duty to not improperly exploit the confidence and trust gained in that relationship for your own benefit, even if you are not a true fiduciary for that person.

  • 1
    You missed confidential information in the context of the tort of breach of confidence - where, absent a contract or other legal obligation, one party imparts confidential information to another in conditions of confidence and that second party misuses it.
    – Dale M
    Commented Nov 29, 2023 at 20:36
  • @DaleM I've heard of a tort of disclosing a trade secret, but I've never encountered a tort called "breach of confidence" at that level of generality. See Restatement of Torts § 757 (1939) (prior to statutory remedies). Restatement (Second) of Torts § 652D (1977)(publicity given to private life) isn't widely adopted, doesn't involve a confidence, and has 1st A. limits. Is it a UK tort? claims.co.uk/knowledge-base/contract-law/breach-of-confidence At best it is undeveloped in U.S. law. scholarship.law.gwu.edu/cgi/…
    – ohwilleke
    Commented Nov 29, 2023 at 21:29
  • @DaleM Shorter: Almost no U.S. jurisdictions have such a tort (or a substantive remedy for such conduct by another name outside trade secrets and NDA violations), contrary to the unsupported claim of the linked law review article, but maybe it's a thing elsewhere that I am not familiar with.
    – ohwilleke
    Commented Nov 29, 2023 at 21:34
  • Did you not mention that confidentiality falls away if the lawayer advises his client to break the law in the style of Saul Goodman in one of your posts. I seem to want to think so.
    – Neil Meyer
    Commented Nov 30, 2023 at 9:54
  • @NeilMeyer That would have been beyond the scope of the question which is about the more general terminology.
    – ohwilleke
    Commented Nov 30, 2023 at 15:51

Confidentiality is one part of the privilege. Other parts include that the law practitioner must act in your best interest and that there should be no conflict of interest and that your lawayer must generally tell you the truth when acting in his/her professional capacity.

The confidentiality may fall away if the law practitioner advises clients to break the law. A Saul Goodman type of criminal lawayer could very well be compelled to break the confidentiality. Although apparently that is not something the show ever considered.

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