Vickery, Alan B. "Breach of Confidence: An Emerging Tort." Columbia Law Review 82:7 (November 1982), p. 1426-1468.
Existing Citations
confidentiality (p. 1427-1428): Every member of society engages in relationships of trust and confidence. We turn to doctors, lawyers, counselors, teachers, bankers, accountants, and others for assistance in matters beyond our individual knowledge or capacities. [Note: This Note is concerned primarily with nonpersonal confidential relationships, rather than relationships of a personal nature with family or friends. . . . ] Relationships of this kind require us to lower our defenses and permit some intrusion into our personal lives. Specialists who advise us must have access to complete information for their advice to be effective. A person who lacks training in a specialty cannot separate relevant information from irrelevant, so all must be revealed. . . .
¶ To foster candor and cooperation within such relationships, those who advise or assist us ordinarily hold forth an assurance of secrecy. The source of this assurance is usually customary practice and common understanding, though professional codes of ethics or statutes n6 mandate confidentiality in certain relationships. Whether formalized or not, the assurance of secrecy is vital to the success of the relationship. We rely on it initially in forming the relationship, and thereafter in revealing what we would otherwise hold back.
¶ These two elements -- the assurance of secrecy and the reliance it evokes -- are the essential ingredients of what can be termed a "confidential relationship." The giver of information places himself in a vulnerable position in reliance on the assurance of secrecy and thus has a legitimate expectation of confidentiality. The receiver of the information, by implicitly holding out the assurance associated with his occupation, invites the reliance and thus has an obligation not to disappoint the giver's expectation. Most would agree that revealing to a third party any private information learned within the relationship constitutes a moral wrong. (†783)
confidentiality (p. 1434-1435): A disclosure to a third person in breach of confidence invades two distinct interests of the wronged individual: first, his general interest in the security of the confidential relationship and his corresponding expectation of secrecy; and second, his specific interest in avoiding whatever injuries will result from circulation of the information. The first interest is important because the expectation of secrecy prompts the communication of embarrassing information in the first place. If it is disappointed, the wronged party is likely to remain silent in circumstances that would otherwise call for frankness, in both the relationship violated and possibly in other confidential relationships essential to the person's welfare and prosperity. Even a limited disclosure of relatively innocuous information may destroy the individual's sense of security and deter future candor.
¶ The extent of invasion of the second interest depends on the content of the disclosure and the nature of the audience. The more intimate or embarrassing the information, the more damaging the disclosure probably will be. The wronged party may suffer ridicule, loss of business or professional reputation, or deterioration of personal relationships. Though injury often flows from widespread publication of disclosed information, the greatest injury may well be caused by disclosure to a single person, such as an employer or a spouse.
¶ The breach of confidential relationships also jeopardizes societal interests. Beyond a general interest in promoting justice between individuals when the conduct of one has injured another, society has specific interests in assuring that certain types of confidential relationships are respected. For example, the physical and mental health of individuals is a fundamental societal concern. Because confidentiality promotes the full disclosure necessary to effective medical treatment, society has an interest in fostering doctor patient confidences. Similarly, enforcement of lawyer-client confidences advances society's interest in having its members fully apprised of their legal rights and obligations. (†784)
