A defense attorney in uniform can face a tension a civilian lawyer rarely does: the same chain of command that outranks the attorney may want to know what a client said. The answer is that the duty of confidentiality does not bend to rank. Two distinct protections bind the attorney to the client, and the system is built to keep command pressure from overriding them.
Two layers of protection
Confidentiality rests on two separate but reinforcing duties:
- The evidentiary privilege (Military Rule of Evidence 502). The lawyer-client privilege protects confidential communications made to facilitate legal services from being disclosed in proceedings. It is the courtroom shield.
- The ethical duty (the rule of professional conduct on confidentiality). Under the military rules of professional conduct, a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. This ethical duty is generally broader than the evidentiary privilege, covering information from any source, not just protected communications.
Together, these mean the attorney is bound both as a matter of evidence law and as a matter of professional ethics, and neither duty is owed to the command.
Why command pressure does not override them
The duties run to the client, not to the chain of command, and the system reinforces that in structural ways. Defense counsel are organizationally independent of the command, and the law’s strong prohibition on unlawful command influence bars improper attempts to interfere with the defense function. So a commander who pressures a defense attorney to reveal client confidences is asking the attorney to violate binding duties, and both the attorney’s obligations and the surrounding protections are designed to refuse that demand.
The honest limits
Confidentiality is powerful but not unlimited, and candor about its edges is part of competent practice. The privilege can be lost or does not apply in defined situations, for example, when the client consents, when communications are made in the presence of others not assisting the lawyer, or under the crime-fraud principle when a communication clearly contemplates a future crime or fraud. Knowing these boundaries lets an attorney protect what is protected and advise the client accurately about what is not.
When a commander demands to know what an accused told their lawyer, the attorney refuses, because both the lawyer-client privilege and the broader duty of confidentiality run to the client, not the command.
The practical upshot is that confidentiality holds against rank. The lawyer-client privilege and the broader ethical duty bind the attorney to the client, structural independence and the ban on unlawful command influence shield those duties from command pressure, and the only exceptions are the recognized legal limits, not a commander’s wishes.
Frequently Asked Questions
What protects communications between a service member and their military attorney?
Two things: the evidentiary lawyer-client privilege under Military Rule of Evidence 502, and the broader ethical duty of confidentiality under the rules of professional conduct, both owed to the client.
Can a commander require a defense attorney to disclose what a client said?
No. The duties run to the client, not the command, and defense counsel independence plus the prohibition on unlawful command influence are designed to prevent command pressure from overriding confidentiality.
Are there limits to confidentiality?
Yes. The privilege can be lost or not apply in defined situations, such as client consent, communications made in front of others not assisting the lawyer, or the crime-fraud exception for communications contemplating a future crime or fraud.
This article is general information about confidentiality in military practice. It is not legal advice and does not create an attorney-client relationship. Application is fact-specific and the rules can change. Specific questions should be directed to qualified counsel.
Sources