There are a variety of different types of privilege. Attorney-client privilege is a privilege that makes communications between an attorney and a client confidential. This privilege makes it such that the communications cannot be disclosed, even at trial. The privilege also applies to any advice your attorney gives you.
What is the Purpose of the Attorney-Client Privilege?
In order to properly and fully defend you, a lawyer needs to know all the facts of your case, even if some of them are bad or damaging. The privilege exists to encourage openness and honesty on your part in telling the whole truth to your lawyer. The communication is confidential and only you, the client, can waive it. So, you should feel confident in being open with your lawyer and telling him or her all the facts of your case.
Is Anything I Say to an Attorney Privileged?
No. There are certain requirements that must be met in order for the privilege to exist. There must be a communication to, from, or with an attorney. That is to say, there must be an attorney-client relationship. Also, your communication must be made in confidence. You must also be requesting or seeking legal advice from the attorney and the attorney must be acting in a legal capacity (meaning he's giving legal advice, not financial or psychological). If any of these are missing, the communication might not be privileged.
Does the Privilege Only Cover Things I Say to my Lawyer?
No. The privilege covers almost any type of communication, not just verbal communication. So, written communications as well as nonverbal communications (such as head nodding) are covered.
Does the Privilege Extend to Anyone Else?
Yes and No. The privilege does extend to agents of the lawyer. So, if your lawyer's assistant or paralegal is working on your case, the privilege extends to them as well. But, in theory the privilege is solely between the attorney and the client.
Can the Privilege Be Waived? Are There any Exceptions?
Yes and yes. Only you, the client, can waive the privilege. But be careful, it is easier to waive than you would think. For example, if you tell something to a third party (one who is not covered by the privilege), then you have waived privilege. There are many exceptions to attorney-client privilege. For example, if you decide to sue your lawyer for malpractice, any privilege will be waived.
I'm Facing Criminal Charges, Do I Need a Lawyer?
The attorney-client privilege applies the same in the criminal setting as it does in the civil one. Feel free to tell your lawyer all the facts of your case. Even an experienced criminal lawyer will need to be well informed of the facts of your case in order to properly advise you of your rights and defenses. Your communication will be protected by attorney-client privilege and so will not be disclosed except in rare circumstances.
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Last Modified: 11-19-2013 10:34 AM PST
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