Understanding Attorney-Client Privilege and Confidentiality

Attorney Client Privilege

What Is Attorney-Client Privilege?

Attorney-client privilege refers to the confidentiality of communication between an attorney and her or his client. Attorneys cannot divulge their client’s secrets to others, nor can anyone force them to share those secrets. Attorney-client privilege allows the client to share with her or his attorney specific details about the legal case openly. With the privilege’s protection, clients do not have to worry about their attorney testifying against them. The attorney-client privilege applies when:

  • The attorney acts professionally.
  • A client or potential client communicates with the attorney regarding legal advice.
  • The client intended the communication to remain private.

With confidential information, an attorney cannot share that information with anyone outside the legal team. The main exception is if the client waives the attorney-client privilege, but only the client can waive that privilege. Even after the attorney and the client end their relationship, the privilege stays intact.

The Attorney-Client Relationship

There must be a professional relationship for this privilege to exist. The person seeking legal help must be the attorney’s client or potential client. Once an established relationship exists, all communication becomes confidential. If a person asks an attorney friend for advice, then there is no attorney-client privilege. The privilege establishes only when a person seeks legal help in an official capacity.

Confidential Communication

What type of communication does attorney-client privilege protect? It protects written or spoken communication regarding case details. It also protects other forms of communication. For example, head nods, hand gestures and even silence are other potential types of confidential communication.

Duty of Confidentiality

The primary purpose of attorney-client privilege is to protect attorneys from having to testify against their clients. It also protects clients from worrying about their attorney using their information against them in the court of law.

This differs from the duty of confidentiality. Duty of confidentiality prevents lawyers from formally or informally discussing the client’s case with others. Lawyers owe their clients this duty, and they must keep most information regarding the client’s case private. Even if the information does not come directly from the client, it remains confidential.

What Is Not Covered by Attorney-Client Privilege?

Attorney-client privilege does not protect all information, such as:

  • Dates of meetings
  • Duration of consultation
  • Who was present during a consultation
  • Fees
  • Retainment terms and conditions

When Can Parties Break This Privilege?

There are some cases where the attorney-client privilege does not apply. If you plan on working with an attorney, you must understand these instances. Here are the exceptions to attorney-client privilege:

Crime or Fraud Exception

If a client seeks advice from her or his legal counsel on how to assist with committing a crime or committing fraud, this is not protected communication. In some states, attorneys must report information that their client gives them if it may prevent death or serious injury to another person.

When a client talks about past crimes committed, this information becomes confidential and protected. Additionally, if a client admits to being guilty of the current offense, this is also protected information.

Death of a Client

Generally, the attorney-client privilege extends beyond the client’s death, meaning attorneys should still keep their information confidential even after their client passes. However, there are cases where a client’s death can constitute breaking the privilege. For example, if litigation ensues between the client’s heirs or descendants, the attorney can break confidentiality to provide necessary information for the litigation.

Common Interest Exception

The common interest exception comes into play when the same attorney represents two parties. If there is future litigation between these two parties, attorney-client privilege does not protect information from the previous case.

Fiduciary Duty

If an attorney represents a corporation, the attorney-client privilege is not absolute. If the corporation’s shareholders want to remove the privilege, that may be an exception.

The Privilege Is Waived

The client may waive the attorney-client privilege. In this case, the attorney can share information regarding the case. The client is the only one who can waive the privilege; the attorney cannot waive it without consent from the client.

The Presence of a Third-Party

If there is a third-party present during a consultation, then the information shared has no legal protection. This is because the attorney-client privilege does not bind the third-party. This also applies when you share information with your attorney in a public place where others can overhear your conversation.

Connect with an Attorney Today

When speaking with an attorney, you need to discuss the scope of attorney-client privilege. You should also establish a professional relationship that protects the details you share. Make sure you have a full understanding of the privilege before you disclose any information to your legal advocate. Each state has unique laws and rules regarding attorney-client privilege, and your lawyer must fill you in on everything you need to know.

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