The maintenance of full and frank disclosure between lawyers and their clients is the main justification for the duty of confidentiality.
It allows clients to freely discuss intimate details without fear that such information could be subsequently disclosed to the general public.
The duty is sourced from a combination of contract law and equity arising from the distinctive relationship between lawyer and client.
As the lawyer-client duty of confidentiality is primarily sourced in contract law, the wording of implied terms in the retainer agreement determines its scope of operation.
Legal professional rules have tended to adopt the broad view of the scope of duty recognised in contract law.
Though the duty of confidentiality shares a common origin, goals, and similarities with legal professional privilege, they are distinct in at least three ways.
The breach of the duty in certain contexts is justified through the balancing of the often competing interests of the client and proper administration of justice.
Where expressly provided for in statute, lawyers must comply with any parliamentary requirement necessitating breach of the duty to confidentiality.
Lord Denning in Parry-Jones v Law Society[1] said at 6-7: Statutory abrogation of the duty is limited in scope and purpose however.
Lawyers may disclose confidential information relating to the retainer where they are reasonably seeking to collect payment for services rendered.
Nonetheless, the lawyer still owes a duty of loyalty, and clients may feel betrayed if such information is disclosed, even if it becomes public knowledge.
Previously confidential communications between the lawyer and testator are no longer secret for the purpose of proving the Will is the intent of the now deceased decedent.
In many instances, the will, codicil, or other parts of the estate plan require explanation or interpretation through other proof (extrinsic evidence), such as the attorney's file notes or correspondence from the client.
In certain cases, the client may desire or consent to revelation of personal or family secrets only after his or her death; for example, the Will may leave a legacy to a paramour or a natural child.