Confidential vs Privileged: Is There A Difference?

By: Janis Palma, PhD

Canon 3. Confidentiality

Privileged or confidential information acquired in the course of interpreting or preparing a translation shall not be disclosed by the interpreter without authorization.

This conflation has caused some anxiety among interpreters who have been on the receiving end of a subpoena by a judge who wants to know what was interpreted during an out-of-court proceeding. Can we disclose confidential information obtained during the course of an interpreting event? Technically, we cannot. Not of our own volition. But if a judge orders that we disclose information of a confidential nature that we interpreted, then we disclose—unless we can’t remember, which is what usually happens after we complete an assignment.

To be clear, no judge may compel the disclosure of privileged communications between counsel and client, and that injunction includes the interpreter. That is, unless the client decides otherwise. The protection against disclosure of attorney-client communications “is the privilege of the client,” and as the Supreme Court of Errors of Connecticut clarified, “he may renounce or waive it at his pleasure.” Goddard at 175. But only the client can waive or renounce it, not the attorney, and certainly not a judge. An interpreter will never be asked to disclose the contents of privileged communications.

On the other hand, an interpreter may be compelled to disclose the contents of confidential communications, as can attorneys and other parties to a case, except a criminal defendant, of course, because of the Fifth Amendment protection against self-incrimination. Case law can be muddled because it may use privilege and confidentiality as synonyms. For example, in a 1957 case before the Supreme Court, the opinion mentions an informer's privilege, which it defines as “the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.” Roviaro v. United States, 353 U.S. 53 (1957). In that case the Government refused to disclose the identity of an informant, but the Court ruled that there is a “limitation on the applicability of the privilege [that] arises from the fundamental requirements of fairness. Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Roviaro at 61. Likewise, in 1974 the Supreme Court had to decide whether “the separation of powers doctrine precludes judicial review of a President's claim of privilege.” United States v. Nixon, President of the United States, et al., 418 U.S. 683 (1974). The Court concluded “that the legitimate needs of the judicial process may outweigh Presidential privilege,” Nixon at 707, and therefore “this presumptive privilege must be considered in light of our historic commitment to the rule of law.” Nixon at 708.

With just these two examples, it should be clear that privilege is an ambiguous term. Let’s see what confidentiality is, then, to give each one of these a proper context. The legal dictionary online defines confidentiality as “the keeping of another person or entity’s information private.” Rule 16 of the American Bar Association’s Model Rules of Professional Conduct provides other exceptions. “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent,” but also provides that “[a] lawyer may reveal information relating to the representation of a client … to prevent reasonably certain death or substantial bodily harm …  to prevent the client from committing a crime or fraud,” and several other conditions. 

As judiciary interpreters, our principal concern is the confidential communication we interpret between parties to a lawsuit or a criminal prosecution. We know that everything we do in our professional capacity is presumed to be private and confidential, except when there is a record available for public inspection. This should be our rule of thumb: if we are ordered by a judge to disclose information we acquired during an interpreted event, we follow the judge’s lead and comply. A judge will know whether the information is or is not privileged. Otherwise, we keep everything to ourselves. Remember that a secret shared is no longer a secret.

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