Confidentiality, in Law. The most common instance of confidentiality is in the case of those communications between a client and his legal adviser which neither of them can be called on to produce in a suit, and upon which no action of damages can be founded. The privilege applies to letters written by the lawyer to his client relating to a suit which is either pending or contemplated; but to what extent it covers other business communications is a question on which there are conflicting authorities in Scotland. In England the rule is not qualified by reference to impending litigation. The same privilege is extended to the communications of several parties, or of their counsel and agents engaged on the same side of a cause, and made with a view to their joint prosecution or defence. Where a party placed in such circumstances is examined as a witness, he will be entitled to decline answering questions as to such communings, and even bound to do so, unless the privilege is waived by the other party interested. Such confidential communications cannot, as a rule, be made the ground of an action for libel or slander, because there is a presumption against malice, which may, however, be rebutted. It is on the same principle that a master is protected who, when called upon for the character of a servant, charges him with a theft. With a view to preserving the freedom of domestic intercourse, and from a belief that the testimony of near relatives in favour of each other was worthless, it was formerly the habit to reject them as witnesses. The practice in England for a long time, however, has been to admit, and even to exact their evidence, making allowance, in appreciating its value, for the circumstances in which they are placed. The same principle has latterly been followed in Scotland; and the only exceptions which have been retained by the Evidence Acts of 1853-54 are, that neither the parties themselves, nor their husbands or wives, shall be competent or compellable to give evidence in criminal proceedings in which they are accused, nor to answer questions in a civil suit tending to criminate themselves or each other, or to reveal matters which they have communicated to each other during marriage. But where the issue for trial involves the terms on which the spouses lived, &c., they may be examined. Such communications remain confidential, although the marriage has been dissolved by death or divorce.
From the 4th and 5th centuries the 'Seal of Confession' was held to be inviolable, and no priest could be called upon, under any circumstances, to reveal facts which had been confided to him under its sanction. To this the case of treason was an exception in England, even in Roman Catholic times. The capitularies of the French kings and some other continental codes of the middle ages prohibited the attendance of clergy as witnesses in court. In Roman Catholic countries the privileges of the confessional remain unaltered, although a priest may state that the accused has submitted to penance. The duty of disclosure, however, is enforced in all cases in which the confession has reference to a future crime. In England no special privilege whatever is extended to the Roman Catholic confessional; and the question as to how far a confession made to a clergyman for the purpose of obtaining spiritual comfort and consolation is protected was long considered doubtful. The rule has, however, been settled for some time that clergymen are not entitled to the same privilege as legal advisers; though it has often been advocated as advisable to extend the rule to clergymen, including Roman Catholic priests. In Scotland the point has never been decided, evidence of the kind in question, when not indispensable for the ends of justice, being generally either withheld or withdrawn. It has been decided in England that communications to a medical man, even in the strictest professional confidence, are not protected from disclosure; and the same is the case in Scotland. Factors, bankers, and intimate friends are certainly not within the protection of the rule. Confidentiality exists as to the great majority of official reports and state papers.
In the United States, members of the legal profession are privileged, and, as a rule, what a client says to them cannot be disclosed except the right of confidentiality be waived. Interpreters stand in the same relation as attorneys. Confessions made to a clergyman or priest in some states are privileged by statute, but generally it is otherwise. By a statute of the state of New York, ministers of the gospel and priests of every denomination are forbidden to disclose confessions made to them in their professional character; and in the course of discipline enjoined by the church, similar statutes exist in Missouri, Wisconsin, Michigan, and Iowa. Communications made to a physician are not as a rule privileged; but in some states confidentiality is recognised. Communications between a husband and wife are privileged from disclosure, on the grounds of public policy and the good order of society. See PRIVILEGE.