Breaking Down Attorney-Client Privilege: What It Means and How It Can Affect Your Case
Bill Allen | May 22, 2023 | Personal Injury
Society has an interest in making sure that people can trust their attorneys not to disclose private communications. The attorney-client privilege prevents compelled disclosure of your communications with your attorney.
This includes protection from disclosures to parties such as business associates, competitors, government agencies, and criminal prosecutors. The attorney-client duty of confidentiality, distinct from attorney-client privilege, offers you even broader protections.
What Is Attorney-Client Privilege?
Essentially, attorney-client privilege is a rule of evidence that prevents the judicial system from using privileged communication against you without your permission. “Privileged communication” means communication between you and your attorney about your case, as long as no exception applies (see below). The privilege binds not only your attorney but also third parties.
The privilege works something like the Fifth Amendment privilege against self-incrimination, except that it is based on the Sixth Amendment’s right to counsel. When you invoke attorney-client privilege, or when your attorney invokes it on your behalf, you are essentially acting to prevent privileged communication from being admitted to evidence in court. Even if someone discloses your privileged communication, a court cannot use it against you.
Imagine, for example, that you confessed to your attorney that you were intoxicated the night of a fatal traffic accident. Your confession took place in your attorney’s office with the door closed and nobody else in the room. Unknown to you, an eavesdropper heard your confession. Neither your attorney nor an eavesdropper can report your confession in court. Even if they do, the court must ignore it and cannot admit it as evidence against you unless an exception applies.
What Triggers the Attorney-Client Privilege?
The following facts must exist for attorney-client privilege to attach to your communication with a lawyer:
- The lawyer must be acting in their professional capacity. Off-the-cuff legal advice at a bar probably won’t qualify for protection.
- It must be your intention to keep the communication confidential. This intention must exist at the time the communication occurs. You cannot retroactively declare a communication confidential.
- Your subsequent behavior must indicate your intention to maintain confidentiality. You might forfeit attorney-client privilege if you disclose the information to others.
If you contact a lawyer about representing you in a pending legal matter, you are under no obligation to hire the lawyer. If you decide not to, is there enough of an attorney-client relationship to trigger attorney-client privilege and attorney-client confidentiality?
There probably is. Nevertheless, since this is a legal gray area, it is best to confirm confidentiality at the beginning of any initial consultation with an attorney.
Attorney-Client Privilege Exceptions
There are many exceptions to attorney-client confidentiality. Fortunately, most of them are based on common sense.
Attorney-client privilege works like property. And that property belongs to you. You can waive attorney-client privilege any time you want to, either wisely or foolishly. Under certain circumstances, it might make sense to grant a limited waiver of your attorney-client privilege. Your lawyer cannot waive the privilege on their own initiative – only you can.
You can’t keep a gun out of evidence by giving it to your lawyer to hide. Attorney-client privilege protections communications, not objects.
Prevention of Death or Serious Injury
Suppose that you tell your lawyer that you are going to murder your husband to collect insurance money. In this case, your lawyer is free to go ahead and disclose this information to the police.
Prevention of Fraud
You cannot rely on attorney-client privilege to defraud someone; your attorney can reveal as much of your communication as necessary to prevent that fraud.
For communications to be privileged, there must be a reasonable expectation of privacy. You are protected from eavesdroppers but not from your own lack of candor in speaking in a loud voice.
One common question arises when a prisoner speaks with their lawyer on a prison phone. If the prison has already warned the prisoner that all conversations are monitored, does attorney-client privilege attach?
Judicial decisions vary, so err on the side of caution. However, note that you enjoy protection if the prison assures you in writing that your phone conversations are confidential, even if they do eavesdrop on your conversation and later disclose its contents.
If your lawyer jointly represents you and someone else (you and your spouse in an amicable divorce, for example), you cannot assert attorney-client privilege against the other party.
Corporate counsel represents the corporation, not you or any individual within the corporation (even the owner or the CEO). Your communications with corporate counsel are not privileged except where the purpose of the privilege is to protect the corporation.
In most cases, attorney-client privilege means your secrets die with you. If there is a probate dispute after you die, however, your attorney can reveal enough of your communications to clear up any confusion about your intentions.
The Attorney’s Duty of Confidentiality
People often confuse attorney-client privilege with lawyer-client confidentiality, otherwise known as the attorney’s duty of confidentiality. In fact, the duty of confidentiality protects a much broader scope of communication than attorney-client privilege does.
The duty of confidentiality protects any information related to your lawyer’s representation of you, regardless of its source. For example, it prevents your attorney from disclosing information that they received from a third party.
The duty of confidentiality is an ethical rule that your attorney must either keep or risk sanctions from the Florida Bar. In extreme cases, an attorney who violates the attorney’s duty of confidentiality might face disbarment.
Nevertheless, you can also waive your attorney’s duty of confidentiality with respect to specific disclosures. It might be in your interests, for example, to allow your attorney to disclose certain information about your case during settlement negotiations.
What’s the Relationship Between Attorney-Client Privilege and the Attorney’s Duty of Confidentiality?
Essentially, any information protected by attorney-client privilege is also protected by the attorney’s duty of confidentiality. On the other hand, only some of the information protected by the attorney’s duty of confidentiality is also protected by attorney-client privilege.
Attorney-client privilege prevents your attorney from disclosing privileged communications to a court. The attorney’s duty of confidentiality prevents your attorney from disclosing any information they learned while representing you to any third party without your permission.
Both Honesty and Candor are Essential
It is absolutely essential that when you are communicating with your attorney, you not only speak honestly, you also speak candidly. That means you not only avoid falsehoods but that you hold back nothing relevant. The law sees to it that you are well-armed to prevent an unscrupulous attorney from disclosing private information that might hurt you.
If you are pressing a personal injury claim, for example, you might conceal an old back injury from your personal injury attorney out of fear that your lawyer will disclose this information and the insurance company will use it against you. You are hurting your own cause this way. If the insurance company finds out about it (from medical records, for example), they will pounce on it, and they will use your lack of candor to discredit you.
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