The purpose of the attorney-client privilege is to protect all confidential communications made by a client to an attorney. Confidential information exchanged between a client and an attorney can serious legal consequences for a client’s case.
The client is the holder of the privilege. This means that the attorney must receive the client’s permission and consent to openly share the information. Also, the courts cannot force the attorney to testify in court about confidential client information.
When Does the Attorney-Client Privilege Apply?
The attorney-privilege applies when:
- The communication is made in private and the client intends the communication to remain confidential.
- The client is communication with the lawyer regarding legal services.
- The lawyer is acting in a professional capacity with the client regarding legal services.
Can Anything I Say to an Attorney Be 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 and the client must have intended the communication to be private and in confidence. Another duty owed by the attorney is the duty of confidentiality.
Under the duty of confidentiality, all communications and information made in confidence by the client must not be communicated to a third party without the clients consent. This duty survives the attorney-client relationship and does not terminate even after the relationship has ended.
Does the Privilege Only Verbal Communication?
No. The privilege covers almost any type of communication. So, written communications and other nonverbal communications (such as head nodding) are covered.
The privilege only applies to communications made in private regarding legal services. The privilege does not apply in situations where the client wants to know how to commit a future crime or fraud or communications that the attorney must use to protect himself/herself from a malpractice claim brought by the client against the attorney.
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 also many exceptions where the attorney client privilege does not apply:
- Communications made by client about intentions to commit a crime in the future.
- Communications necessary to protect the attorney from a malpractice claim.
- Presence of a third party who is not a spouse or a party in the client’s case.
Note that the attorney client privilege will apply even in the initial consultation between a lawyer and the client. The rational for this rule is that they want clients to be open and honest with all lawyers without being afraid that the communications will be heard by someone else.
How to Communicate with Your Attorney
The attorney-client privilege applies the same in the criminal case as it does in the civil case. Due to the attorney-client privilege, you should feel comfortable telling 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.