There are two basic standards which all attorneys are required to adhere to when it comes to keeping their client’s personal information confidential. The first is the duty of confidentiality.
The second is the attorney-client privilege. These two duties are related, but they are not the same.
What is the Attorney’s Duty of Confidentiality?
An attorney’s duty of confidentiality provides that the attorney is not permitted to reveal anything which is related to their client’s legal representation without their consent. In other words, an attorney is prohibited from revealing any matter which may be related to the legal claim for which they were hired.
This duty is very broad and applies to all matters related to a claim, not just confidential communications or those communications which were intended to be confidential. For example, if an individual hires an attorney for a divorce and they disclose information regarding their previous divorce, the attorney should not disclose this information to any other individual since it may be related to the claim.
What is the Attorney – Client Privilege?
The attorney-client privilege is a stricter standard than the duty of confidentiality. This privilege protects the communications between a client and their attorney for the purpose of obtaining legal assistance or advice.
This privilege protects the client and the attorney from being compelled to reveal their confidential communications in a court of law. In contrast to the duty of confidentiality, the attorney-client privilege only applies where a formal attorney-client relationship was established.
Pursuant to federal laws, this privilege continues after the attorney’s representation is complete.
This privilege also applies after the client passes away, unless that client provided prior permission to make a disclosure. It is important to note, however, that state laws vary on how long the privilege lasts.
What is the Purpose of the Attorney-Client Privilege?
The purpose of the attorney-client privilege is to protect all confidential communications which are made by a client to their attorney. Confidential information that is exchanged between a client and an attorney may have serious legal consequences for the client’s case.
The client holds the privilege. This means that the attorney is required to receive the client’s permission and consent to share the information. In addition, a court cannot force the attorney to testify in court regarding confidential client information.
When Does the Attorney-Client Privilege Apply?
In order for a communication to be protected under this privilege, there are 5 requirements which must be satisfied, including:
- The individual claiming the privilege must be a client, or someone who had sought to be a client at the time of communication;
- The individual receiving the communication must be acting as their lawyer;
- The communication must be private, that is, between a client and attorney only, with no involvement from a non-client;
- The communication must be made for the purpose of securing legal advice, services, opinions, or assistance in a legal proceeding; and
- The privilege may only be waived by the client, and the client must demonstrate informed consent to waive. The attorney cannot waive the privilege for their client.
Can Anything I Say to an Attorney be Privileged?
No, not anything an individual says to an attorney can be privileged. There are requirements which must be fulfilled in order for the privilege to apply.
The communication must be with, to, or from an attorney. The client must have intended for that communication to be in confidence and private.
The attorney must also be acting in a professional capacity with their client regarding their legal services.
Does the Privilege Apply Only to Verbal Communication?
No, the privilege applies to almost any form of communication. This includes written communication as well as other non-verbal communication, for example, nodding of the head.
It is important to note that the privilege will only apply to communications which were made in private related to legal services. It does not apply to a situation where a client desires to know how to commit a crime or fraud in the fire.
The privilege also does not apply to communications that an attorney is required to use in order to protect themselves from a malpractice claim that is brought against them by their client.
Does the Privilege Extend to Anyone Else?
Yes, the privilege extends to agents of the attorney. This means that if an attorney’s assistance or paralegal is working on a case, the privilege will extend to them.
In theory, however, the privilege exists solely between the attorney and their client.
Can the Privilege be Waived?
Yes, the privilege can be waived. It is important to note, however, that the privilege can only be waived by the client.
It is easier to waive the privilege than an individual may anticipate. For example, if a client provides information to a third party, another individual who is not covered by the privilege, then they have waived privilege.
Are There Any Exceptions?
Yes, there are exceptions when the attorney-client privilege will not apply, including:
- Communications made by a client regarding their intent to commit a crime in the future;
- Communications necessary to protect the attorney from a malpractice claim; and
- If a third party who is not a spouse or a party in the client’s case is present during the communication.
The attorney-client privilege applies even during the initial consultation between the attorney and their client. The rationale for this rule is that an attorney will need their client to be open and honest without fear that the communications will be heard by someone else.
Are there Circumstances When An Attorney can Reveal My Confidential Information?
Yes there are several exceptions to both the duty of confidentiality as well as the attorney-client privilege. If the communication between an attorney and their client falls into an exception, the information may be revealed before a court or other authorities.
Exceptions to the duty of confidentiality include:
- Consent: Information may be shared if the client consents to its disclosure;
- Self–defense of the attorney: The attorney is permitted to disclose confidential information when it is necessary to defend themselves against a personal claim filed by the client against their attorney;
- Prevent client from committing a crime: If the client is about to commit a crime involving the death or serious bodily injury of another, the attorney can disclose information regarding the crime. This also applies to crimes involving serious financial loss; and
- Court order or rule of law: If a court orders an attorney to make a disclosure or if the disclosure is required by law, the attorney will be required to follow the court’s instructions.
Exceptions to the attorney–client privilege include:
- Disclosure by client: If the client discloses information to a party other than their attorney or staff or consents to the disclosure;
- Crime or fraud: If the client sought the attorney’s services in order to commit or aid in the commission of the crime, the lawyer can reveal the information;
- Joint client exception: If an attorney is hired by two individuals to represent them as joint clients and they subsequently file a lawsuit between themselves, either party can use the attorney as a witness if they desire. The attorney may then disclose information about either party; and
- Self–defense of the attorney: An attorney may disclose the client’s information if necessary as a defense in court if their client sues them.
How Do I Communicate with My Attorney?
Attorney-client privilege applies the same in both civil cases and criminal cases. This should make an individual feel comfortable communicating to their attorney all of the facts of their case.
An individual’s attorney will need to have all facts and information surrounding a case in order to properly defend their client or present their best case in civil court.
Should I Seek Legal Help?
If you have a legal issue which involves a conversation that you believe may be privileged, it may be helpful to consult with a criminal attorney. Your attorney can help to ensure that your rights are protected.