Lawyer Sidney Powell appeared at a press conference a few days ago as a member of the President’s legal team and made a few jarring comments (most notably about Hugo Chavez trying to rig the U.S. election). A few days later, the President’s lead personal attorney issued a statement that appeared to remove her from the legal team. It read:
Sidney Powell is practicing law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the president in his personal capacity.
There’s been some commentary on Twitter about how this statement means that Ms. Powell can now divulge her conversations with the President, because they are not longer privileged. Or maybe that the conversations are no longer confidential. Twitter doesn’t really know, but it’s sure that this will be wonderful.
Nope, nope, and nope again.
Ms. Powell cannot (and should not) reveal her conversations with the President. They are both privileged and confidential.
Those are two different concepts to make sure conversations with lawyers stay private.
The Difference Between Attorney-Client Privilege and Confidentiality
The source of the attorney client privilege is a rule of evidence in court. The evidence rules prohibit the disclosure of communications between a lawyer and her client made for the purpose of giving legal advice. Here’s how the Supreme Court described the attorney-client privilege many years ago:
Confidential disclosures by a client to an attorney made in order to obtain legal assistance are privileged. The purpose of the privilege is to encourage clients to make full disclosure to their attorneys.
Fisher v. United States, 425 U.S. 391, 403 (1976).
There are some limits to the privilege. For starters, there must be an actual attorney-client relationship. And the communication must have been for the purpose of providing legal advice. If a lawyer was recommending her favorite Netflix show, then that communication is technically not privileged.
The client “owns” the privilege, meaning that only the client can decide whether to waive it. The lawyer cannot decide to waive the privilege and disclose communications with a client. If a client waives the privilege—by saying so expressly or himself sharing privileged communications with someone else—then the privilege is gone. Someone else, such as your opponent in litigation, could find out about privileged communications.
Duty to Maintain Confidentiality
On the other hand, the source of the duty of confidentiality is a rule of professional ethics. Every state has a set of ethics rules, and the American Bar Association has model rules of ethics. When a state licenses a lawyer to practice law, the lawyer is then bound by those rules of ethics. This gets confusing when a lawyer is licensed by several states and those states have conflicting rules.
The duty of confidentiality is quite broad and fairly uniform across the states.
Under the D.C. Rule of Professional Conduct 1.6
A lawyer shall not knowingly
(1) reveal a confidence or secret of the lawyer’s client;
(2) use a confidence or secret of the lawyer’s client to the disadvantage of the client;
(3) use a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person.
The D.C. rule makes clear that this prohibition against disclosure covers both (a) information that is protected by the attorney-client privilege and (b) “other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.”
If a lawyer violates this rule of ethics, she could face suspension or disbarment. This is a serious matter.
The client also “owns” the confidence, as he does the privilege. The client–or potential client–can consent to the disclosure of the confidential information.
The confidentiality rules apply when a lawyer is talking to a person for the purposes of hiring the lawyer as well. In D.C., this is Rule 1.18. It says “[e]ven when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as permitted by Rule 1.6.”
There are other circumstances when a lawyer may reveal confidential information under the rules of ethics, but they vary by state. For example, in the District of Columbia, I may (but am not required to) reveal confidences “to prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm.” (Luckily, that has never been an ethics issue I’ve had to address.)
Why Ms. Powell Will Keep Her Conversations with President Trump Quiet
Unless she wants to risk disbarment, which seems unlikely, Ms. Powell will not reveal what she discussed with the President or the rest of the legal team.
Note that this press release is written in the present tense. It says that, as of now, Ms. Powell is not part of the legal team. It appears that she was a part of the legal team in the past, even if she was not an attorney of record in the election litigation. So, the President’s conversations with her are privileged—at least until the point when they released the statement.
A lawyer’s duty to protect privileged communications exists even after the attorney-client relationship has ended. In the same way, a lawyer’s duty to protect a client’s confidentiality exists even after the relationship has ended.
What’s important here is that this statement does not say that Ms. Powell was never a part of the legal team or that she was never a lawyer representing the President’s interests. If it said that, then her participation in conversations about legal strategy or with the President may not be covered by the privilege at all. That would be dangerous territory for the President and his legal team.
All that said, the duty of confidentiality is very broad. If the President wasn’t sure if he wanted her on his legal team, he may have had preliminary conversations with her. Those conversations are still confidential under the rules of ethics, even if he never formally hired her.
For example, when a potential client calls me to discuss a case, she may reveal details about her case. But I’m never going to reveal them, even if the potential client decides not to hire me. That information is confidential under the ethics rules, and I would never violate those rules or a potential client’s trust in that way.
Until we see otherwise, we should assume that Ms. Powell will take the same approach.