You’ve hired a lawyer to help you with the legal matter you’ve been grappling with, but as you prepare for that first meeting with your new lawyer, you may have concerns about how much information you should provide him or her. After all, you’re pretty sure your lawyer is subject to attorney confidentiality—that is, he or she is required to keep any details you disclose confidential—but can he or she be compelled to disclose that information, for example as testimony in court?
Your concerns about attorney-client confidentiality are not misplaced. In fact, such concerns are valid enough that there’s a legal concept that deals specifically with this issue. That concept is known as the attorney-client privilege.
What is attorney-client privilege?
In addition to lawyer confidentiality, attorney-client privilege means any information you discuss with your lawyer that’s relevant to your case is not only confidential but is also subject to privilege: your lawyer cannot disclose or be compelled to disclose such information to third parties. This applies even to the judicial system; subject to certain exceptions, your lawyer cannot voluntarily testify nor be compelled to testify about communications made within the context of your attorney-client relationship.
The concept of attorney-client privilege is a powerful one. It remains in place even after the attorney-client relationship itself has ended. The protection provided by the privilege to communications between an attorney and his or her client are meant to encourage what the U.S. Supreme Court has termed “full and frank” disclosures between clients and their lawyers. Why is this important? Unless you’re honest and open with your attorney about the facts surrounding your legal case, your attorney will be unable to provide you with effective advice and representation.
When does the attorney-client privilege apply?
Generally speaking, attorney-client privilege will apply where a client, whether an actual client or a prospective client, speaks with a lawyer for the purpose of obtaining legal advice. The lawyer must be acting in the capacity of a lawyer and not, for example, as a business advisor or a friend. Additionally, the client needs to have intended the information communicated to the lawyer be communicated in confidence.
Actual clients vs. prospective clients
In most cases it’s pretty clear that an attorney-client relationship giving rise to attorney-client privilege exists. You may have an engagement letter, or paid fees to your lawyer, for example. But what about the initial consultation between a prospective client and an attorney, especially when the attorney does not end up representing the prospective?
Generally, any information you disclose to a lawyer regarding your legal issue on an initial legal consultation will be covered by attorney-client privilege, even if you do not end up hiring the lawyer to represent you. The existence of the attorney-client privilege in such a situation means you can find an attorney, ask legal questions and obtain legal help without worrying about jeopardizing your legal position.
To be absolutely certain, though, that what you disclose as a potential client will be covered by attorney-client privilege, you should discuss the issue of privilege with a prospective lawyer first to ensure that client-attorney privilege applies before you give him or her any information you consider confidential.
Attorney-client privilege exceptions
In general, attorney-client privilege will apply to communications about legal matters between a lawyer and his or her client. A number of exceptions to the privilege do exist, however.
- Presence of a third party. Where communications take place between a client and his or her lawyer while in the presence of a third party who is not covered by privilege, the communication will not be protected by attorney-client privilege. So, for example, if you bring a friend to your meeting with your lawyer, communications made during that meeting would not be covered by attorney-client privilege.
This exception also applies if you discuss matters with your lawyer in a public place where you could be overheard. If someone does overhear your conversation, you can’t invoke attorney-client privilege to prevent that person from, for example, testifying in court about they overheard.
- Waiver of the privilege. Attorney-client privilege is also lost in cases where the client waives the privilege. For example, clients will likely have waived attorney-client privilege when they communicate confidential information to their lawyers and then later disclose that same information to a third party.
- Intended commission of fraud or a crime. The crime-fraud exception applies where a client either intends to commit or to cover up a fraud or a crime. Because the attorney-client privilege is a privilege that belongs to the client, the lawyer’s knowledge of the crime or fraud is irrelevant. What matters is the client’s intent. However, the exception will likely not apply if a client is only asking about the potential consequences of a criminal action.
Lawyers may also be under ethical obligations to disclose a client’s intention to commit a crime if that crime has the potential to cause death or seriously harm someone. For example, if a client discloses to his or her lawyer an intention to murder an ex-spouse, in many states the lawyer may be required to disclose this communication to the authorities.
What about disclosures of past behavior, though? While a client’s intent to commit or cover up fraud or a crime can apply to remove attorney-client privilege, a client’s disclosure of past criminal or fraudulent behavior to a lawyer will likely not affect attorney-client privilege. So if a client discloses that he or she had, for example, lied during a past bankruptcy proceeding or had been involved in a robbery in the past, this communication would probably still be covered by the privilege.
The attorney-client privilege is a powerful concept protecting your communications with your lawyer. When speaking with a lawyer, you should discuss the application and scope of attorney-client privilege to your communications so that you are clear as to whether privilege applies before you disclose anything you want to remain confidential.
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