Q&A: What’s the Difference Between “Privileged” and “Confidential” Communication?

Two confusing legal concepts made clear.

What is difference between “privileged” communications and “confidential” communications?
The concepts of privilege and confidentiality are often confused. The “clergy-penitent privilege” is a rule of evidence that protects clergy from having to testify in judicial proceedings about communications made to them in confidence while acting in their professional capacity as spiritual advisors.
The important point to note is that privileges pertain to testimony in judicial proceedings, including court-room testimony and depositions.

“Confidentiality” is a much broader concept, and refers to a duty not to disclose to anyone the substance of communications shared in confidence. Confidentiality is distinguished from privilege in two ways.

First, the duty of confidentiality is not limited to judicial proceedings. Second, it is an ethical rather than a legal duty. While the impropriety of disclosing confidential information is universally acknowledged, few clergy have been found legally accountable for unauthorized disclosures. This is because the duty of clergy to preserve confidences has traditionally been considered to be a moral rather than a legal obligation.

No law prevents clergy from sharing confidences. However, in recent years a few clergy have been sued for divulging confidences on the basis of an alleged “duty of confidentiality.” Only two courts have found clergy liable for divulging confidential information. Any other cases addressing this important topic will be addressed fully in this newsletter.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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