Imagine a scene in a big Hollywood legal drama. The client takes the stand and opposing counsel surprises both the client and their attorney by bringing up a fact that the client had never divulged to anyone. It’s a common theme in film and television, but there’s a reason why it works.
It works because the client had not permitted their attorney to prepare for something like that at trial.
One of the most critical parts of any legal case’s success is that the client is fully open and honest with the attorney. It’s so critical, in fact, that attorney-client privilege evolved to enable that level of communication. Read on to learn everything you need to know about it!
We’ve all heard the term “attorney-client privilege,” but what does it really mean?
In the most general sense, attorney-client privilege covers communications between an attorney and their client when the client is seeking advice from an attorney. It sounds straightforward, but there’s a lot to unpack.
The first thing to discuss is what constitutes a communication when it comes to attorney-client privilege. Communications can be anything from a conversation, an e-mail, or a text message.
For communication to fall under attorney-client privilege, it must be confidential. This means that the communication must be between the client and the attorney only. If the client copies an outside party on an email, or if they have a telephone conversation with someone else present in the room, then privilege does not apply.
Finally, the communication must be made in the pursuit of legal counsel. If you run into a personal injury attorney at dinner and casually mention that you’ve committed an offense, that communication is not likely to be privileged.
When Does Attorney-Client Privilege Begin?
We know that communications between an attorney and their client are privileged, but how do we know when an attorney-client relationship exists?
There’s no hard and fast rule when it comes to defining this relationship. In general, an attorney-client relationship exists when an attorney agrees to represent a client. This can be demonstrated by things like engagement letters, a contract outlining the attorney’s fees, or a simple oral agreement.
When those things are in place, it is clear that any information shared in confidence is subject to privilege. That said, sometimes the starting point of the relationship is not always so clear. Courts will look to see if the client had a reasonable belief that an attorney-client relationship existed at the time the client disclosed information they thought would be subject to privilege.
The court looks at things like whether the attorney has represented the client in the past, whether the client paid the attorney fees, and whether the client was clear that they were seeking legal advice from the attorney. If multiple factors are present, then a relationship exists.
Once an attorney-client relationship is in place and their confidential communications are deemed privileged, what does that mean?
It means that the attorney cannot be compelled to testify to any information contained in a privileged communication. They are also not duty-bound to report any previous crimes or offenses to the police or other authorities. Remember, the purpose of attorney-client privilege is to establish a frank dialogue that will help the attorney give you the best legal advice possible.
Can It Be Waived?
Yes, there are situations in which communications subject to attorney-client privilege may be waived.
The client is the only party who may waive the privilege. The most common time a client can waive their privilege is when they allow a third party into a conversation with their attorney. In the eyes of the court, the presence of a third party indicates that the client did not intend for the communication to be confidential.
You can also waive the privilege by later sharing otherwise confidential information with a third party. In addition, if you have a conversation with your attorney in a public space or even in your backyard if you have neighbors nearby, then anyone who overhears the conversation could potentially testify.
If you do not want to waive your privilege, then it is important to make sure that all of your conversations with your attorney are held in a private space where no one can overhear.
Are There Exceptions?
Yes, there are situations in which the attorney may not be able to keep the information you share in confidence.
The number one reason why an attorney may not be able to maintain privilege is if a client shares that they intend to commit a crime or act of fraud in the future. In those situations, many states require an attorney to disclose that information to the relevant authorities. An attorney must also disclose information when that disclosure will prevent death or serious injury.
In general, privilege only applies to past acts.
When Does Attorney-Client Privilege End?
There is no specific end-point to attorney-client privilege. For most people, attorney-client privilege will extend far beyond the end of the legal relationship. In fact, an attorney must keep privileged information privileged even after the client dies.
In short, an attorney may only share your information if there is a waiver or an exception.
Are You Looking for an Attorney to Help You?
Attorney-client privilege exists to protect the valuable exchange of information between a client and their attorney. This allows your attorney to prepare for every “surprise” that opposing counsel might think they have. If you aren’t sure whether the information you’re about to disclose is privileged, you should always check with your attorney first to make sure that you are protected.
Are you looking for an attorney who can assist you with anything from a personal injury case to a disability case? You’re in the right place. Contact Sweet Lawyers today to learn how we can help you.