Attorney client privilege promotes trust between clients and attorneys, enabling them to freely disclose any sensitive or embarrassing information and equipping their attorneys with all of the facts needed to provide effective legal advice on their cases.
But what happens if someone shares confidential information inadvertently with someone outside their immediate circle of trust? Can an attorney be forced to reveal this privileged material in court?
What is Attorney-Client Privilege?
Attorney client privilege is an essential legal principle which ensures all communications between you and your lawyer remain private and protected from disclosure. Attorney client privilege facilitates open dialogue between lawyer and client that allows them to provide you with optimal representation.
Attorney-client privilege can also protect you from having to testify against yourself in court. For communications to qualify as attorney-client privileged, they must be made in confidence between yourself and an attorney for the purpose of seeking legal advice, which includes communication between yourself and individuals who assist an attorney such as paralegals or investigators in providing legal services such as paralegals.
Attorney-client privilege covers oral and written communications between attorney clients, such as conversations or email exchanges, between themselves and non-attorneys – such as family or friends of both clients – but does not extend to discussions regarding criminal or fraudulent conduct; in many states however it allows lawyers to disclose confidential information which might help prevent or mitigate such acts of wrongdoing.
How Does Attorney-Client Privilege Work?
Attorney-client privilege promotes open and honest communications between clients and their attorneys to ensure the latter can properly represent them. While many assume all communications with a lawyer are protected under attorney-client privilege, this may not always be the case.
To qualify under this privilege, communications between lawyers and their clients must take place confidentially for legal services or advice purposes; conversations between business associates or friends do not fall within this scope as they do not involve discussing an legal matter in confidence.
Additionally, communications must pertain directly to representation. Thus, discussions about fraud or criminal conduct would not fall under attorney-client privilege; however, state ethics rules often permit attorneys to release certain information if doing so will prevent death or serious injury. Furthermore, clients must have intended the communication to remain private otherwise the privilege may be lost.
What Can I Do to Protect My Attorney-Client Privilege?
Attorney client privilege applies generally when communications are addressed directly to an attorney or legal office staff who facilitate communication between attorney and client. Privilege typically covers both oral and written communication with individual and corporate clients alike; however there are exceptions; for instance disclosures related to crime planning or fraud do not fall within its coverage; nor does privilege apply when confidential information learned by an attorney about a client who has committed such offenses themselves.
Clients can help preserve attorney client privilege by only discussing matters that fall within its purview and keeping those conversations private. Clients can confirm a communication is confidential by using phrases like “privileged and confidential” or stating its purpose (“seeking or providing legal advice”). By taking these simple steps, clients can ensure their confidentiality is preserved.
What Can I Do to Waive My Attorney-Client Privilege?
Attorney-client privilege can provide clients with legal advice they require, yet in certain instances it can also cause its waiver by disclosing information that has been protected under it.
To qualify as confidential communication, a communication must fulfill several conditions:
Communication should take place in confidence between client and lawyer, with both seeking or providing legal counsel or advice to one another.
Voluntary disclosure by a client to another can result in the privilege being waived – this process is known as waiver by disclosure.
Rule is more complex for corporations; typically a court must determine whether communication between an entity and its outside counsel should be protected as confidential. Most courts use a case-by-case approach when making this determination; usually though, corporate communications with their attorneys will remain protected as long as the discussion relates directly to business affairs of the corporation.
