In Law, what is Confidential Communication?

Confidential communication is communication which takes place between two people who have a legally recognized expectation of privacy, in a setting and circumstances where that communication is clearly intended to be private. Under law, neither party can be compelled to disclose the contents of the communication, although if one party waives the right to privacy, the other can testify as to the nature of the communication. Several types of professional and personal relationships are protected by law in this way.

The most obvious example is the attorney-client relationship. When a client discusses something confidential with an attorney, it is considered a confidential communication and cannot be shared with anyone else. Other examples are spousal relationships, doctor-patient relationships, and relationships between religious officiants such as priests and their congregants. While many people think that confidential communications between religious officiants and congregants apply specifically to confession, they can also include other conversations which take place in a private setting, as not all faiths have confession, but all religious officiants offer private advice and counsel.

Several things must be present in order for a communication to be considered confidential. In the first place, the relationship must be clearly legally established. If someone asks a doctor friend for advice, this is not a confidential communication, unless the doctor friend is acting specifically as a doctor. Likewise, someone who consults a friend who is a lawyer is not entitled to protection, unless the friend is being retained as legal counsel. Furthermore, once a lawyer has been released from employ, conversations which take place afterwards are not protected.

Furthermore, the confidential communication must take place in a setting in which privacy was clearly intended. This could be a location like a private office or conference room. By contrast, if a patient chats with the doctor in a waiting room, or attorney and client have a conversation in a lobby, this is not considered confidential communication because there was no attempt to secure privacy. As a general rule, if a third party is present, the discussion is not confidential, unless the third party is necessary for the conversation to take place, as with an interpreter for someone who speaks a foreign language or an aide for a person with disabilities.

The term “privileged communication” is also sometimes used to refer to this type of communication. People who want to confirm that a discussion is privileged can state that they consider the communication privileged and confidential, as for example on the envelope of a letter which is intended to be private.