While most conversations with your lawyer are protected, there are specific rules and even exceptions to this privilege that you should know about.
Having read this, you might have lingering questions on your mind. What can you say to your lawyer without worry? Are there moments when the confidentiality bubble bursts? And what happens if it does?
In this article, you’ll understand what attorney-client privilege is, the requirements for attorney-client privilege, and some common exceptions to it. By the end of this article, you’ll have a clear picture of how it works and what to keep in mind if you ever need to lean on it.
What Is Attorney-Client Privilege?
The attorney-client privilege protects the confidentiality between attorneys and their clients. Under this rule, lawyers are not to disclose their clients’ secrets even if they are forced to.
This privilege encourages clients to openly share information with their attorneys and lets lawyers represent their clients effectively. It keeps almost all your conversations with your lawyer a secret from people who, if they find out about your secret, will use it against you. The attorney-client privilege is among the oldest privileges for confidential communications.
It applies to both written and oral communications and in various legal contexts, including civil litigation, regulatory investigations, and criminal cases. The privilege’s strongest protection is that nobody can use it as evidence against you, even if your attorney eventually releases it.
Situations That Initiate Attorney-Client Privilege
This privilege arises under these circumstances:
- The client must intend for the communication with the attorney to be confidential. The intention must exist at the time the communication begins.
- The lawyer must be acting in their most professional capacity. Asking a drunken lawyer at a bar for legal advice qualifies for attorney-client privilege.
- You subsequently behave in a way that suggests you intend to keep some information secret. For example, you don’t tell anyone about it. If you disclose the information to others, you’ll forfeit attorney-client privilege.
- You are speaking with an attorney seeking legal advice. This usually occurs in the first free consultation. However, note that confidentiality under these settings can be controversial sometimes, so be careful.
All these elements must be present before attorney-client privilege can be initiated.
Some Exceptions to Attorney-Client Privileges
There are numerous exceptions to attorney-client privilege. Fortunately, some of these exceptions are based primarily on common sense.
Waiver
Attorney-client privilege can be compared to your property. This means that you can waive the privilege at any time. Your attorney has no right to waive the privilege – only you have the power to do that.
Fraud Or Crime
Communication is not privileged if you ask your lawyer for advice to help you commit a crime or conceal fraud. For example, suppose you tell your attorney, “I’m going to bribe the juror to vote in my favor,” or “I am going to kill Brian tomorrow to settle a previous score.”
Your lawyer can report your threats without worrying about violating the attorney-client privilege. However, unless you consider covering up the crime, communications are a privilege if you have committed the crime and are now seeking legal advice.
Death Of The Client
When clients die, most of their secrets go to the grave. However, some information must be exposed if a probate dispute arises between legatees, the decedent’s heirs, and other parties.
Public Settings
The information shared between you and your attorney is protected. Still, you must share it in a private area or setting. The privilege ceases to function if
- You were so loud in public that someone overheard you
- A third person was there when you spoke to your lawyer, and you know about it
- You spoke to your attorney over a prison phone line and were warned that all calls are monitored
Only a third party who has heard everything you said can repeat it in all the cases mentioned. Your attorney is not allowed to do so.
