Attorney-client privilege and duty of confidentiality: Tools to protect you

  • Published
  • By Captain Zachary T. Eytalis
  • Area Defense Counsel
YOKOTA AIR BASE, Japan --  Imagine that your Article 31 rights have just been read to you by an investigator or member of your unit. You are told you are suspected of violating an article of the Uniform Code of Military Justice and that you have the right to remain silent, the right to an attorney and anything you say can be used against you.

This is the last thing that you ever thought would happen to you and you can't believe you are in this situation. Wisely, you decide to assert your right to remain silent and not answer any of the questions until you can make sense of the mess.

The questioning stops and you are allowed to leave. After the initial shock wears off you start wondering what to do and ask yourself what exactly are your rights? You think about discussing your situation with your friends or family, but you are uncertain about what they may think.

In this situation the area defense counsel, or ADC, can help. The ADC can provide you with legal representation and advice. In doing so, the ADC has a duty to keep any and all communications that you make to him confidential. In fact, the very fact that you went to the ADC is confidential. This is known as the duty of confidentiality and is required of every Air Force ADC by the Air Force Rules of Professional Responsibility.

This duty of confidentiality is far reaching. If a client states that he or she either committed or witnessed a crime to an ADC, the duty of confidentiality prohibits that ADC from disclosing that communication to anyone without the client's consent.

In addition to this duty of confidentiality, there is also attorney-client privilege.

Attorney-client privilege is a little different than duty of confidentiality. In addition to preventing disclosure of privileged communications, attorney-client privilege also means your ADC cannot be forced to disclose any communication that you have made to him or her.

Take the situation above, where you decided to remain silent. If you had gone to a friend and made a statement, that friend or co-worker could be forced to tell the government whatever it is that you told them. And if they decide not to disclose that statement when ordered to do so, they could be subjecting themselves to disciplinary action.

By telling your friends you could inadvertently be making their life more difficult because you have now given them the dilemma of maintaining a friendship or receiving an Article 15, or worse, for refusing to disclose whatever it is you said to them.

Your ADC, on the other hand, cannot be forced to disclose any communication or testify against you. In fact, you can prevent you ADC from disclosing any privileged communication. And if for some reason your ADC discloses a communication in violation of this privilege, the court or the judge will most likely not consider it.

The duty of confidentiality and attorney-client privilege are in place so you feel comfortable providing all necessary information to your ADC so that he or she can give you the best representation possible.