Attorney-Client Privilege: Explained

Anything you say can and will be used against you in a court of law.

You’ve probably heard this saying a million times but do you really know what it means?

Whether you’re involved in a criminal or civil matter, you never want to say anything that could hurt your case down the line. The best way to protect your rights is to hire an attorney. When you are presented by a lawyer, you are protected by attorney-client privilege.

How does this work? Keep reading to learn more about when attorney-client privilege applies – and when it doesn’t. 

What is Attorney-Client Privilege?

Attorney-client privilege is one of the oldest concepts in legal history. The basic idea is that when you seek legal advice or help from a lawyer, you don’t have to worry about the lawyer disclosing the confidential information you share with them.

This means that you can speak freely and openly and provide all relevant information. When your lawyer has all of the necessary information, they can provide better legal advice.

Attorney-client privilege means that your attorney can neither voluntarily disclose information obtained in confidence nor be compelled to do so. Attorney-client privilege requires four elements – communication, taking place between privileged persons only, in confidence, and for the purpose of providing legal help to a client. 

Understanding the Attorney-Client Relationship

For attorney-client privilege to apply, there has to be a well-established attorney-client relationship.

Communications that take place prior to this relationship being established are not privileged. You don’t want to make the mistake of assuming your communications with an attorney are privileged without being sure.

Generally, the lawyer-client relationship is established when both parties have agreed to the representation. This can be proven by an oral agreement, an engagement letter, a fee contract, a filed court pleading, a court appearance, or a drafted document.

Is All Communication Privileged?

You might be surprised to learn what is and isn’t considered privileged communication.

Generally, any communication from you to your attorney and any response from them is included. However, even more discrete forms of communication such as nodding in agreement or remaining completely silent can be privileged communication.

But what’s important to realize is that disclosing information to your lawyer doesn’t necessarily mean it won’t come out from another source. If another non-privileged source provides the same information, it isn’t privileged information.

Think about it like this – attorney-client privilege protects communications with your lawyer for you to obtain legal advice, but it doesn’t necessarily protect the information communicated. 

When the Lawyer-Client Relationship Doesn’t Apply

It’s important to understand that not every element of the attorney-client relationship is protected by attorney-client privilege.

For example, certain information including the existence of the lawyer-client relationship itself and the length of that relationship is not privileged. When you hire a lawyer, the general services the lawyer performs for you and the terms and conditions of your legal arrangement might be subject to discovery.

Fee arrangements, times and dates of meetings, the names of other participants in meetings, and documents relating to the same are likely discoverable unless providing this information would reveal communications that are confidential. There are also several public policy exceptions to attorney-client privilege.

When a Client Dies

In estate matters, attorney-client privilege may be breached if the client dies and heirs go to court over the will. 

Common Interest

If an attorney is representing two parties in the same matter, neither party can use attorney-client privilege against the other in court if the issue is the same as when they were being jointly represented.

Crime and Fraud

Communications with an attorney are not privileged if the client intends to commit a further crime, commit fraud, or cover either one up. If the client has already committed a crime or fraud, attorney-client privilege still applies. 

Fiduciary Duty

Corporations have different rights than other clients in matters of attorney-client privilege. For example, a corporation’s shareholders have the right to break through attorney-client privilege.

Waiving Attorney-Client Privilege

It’s important to understand that clients, rather than lawyers have the privilege in an attorney-client relationship. This means that ultimately, the client has the right to assert this privilege – or waive it.

When it comes to corporations, privilege is held by the control group. This group includes the company’s directors and officers. They ultimately have the ability to assert or waive attorney-client privilege. When a corporation changes hands, this privilege is passed on to the successors rather than staying with former management.

Attorney-client privilege can be waived intentionally or unintentionally. For example, if otherwise confidential communications are witnessed by a third party because the client does not intend the information to be confidential, the attorney-client privilege would be waived.

On the other hand, if a client unintentionally discloses confidential information to a third party, this can also waive the attorney-client privilege. You should always be careful when discussing legal matters with anyone besides your attorney. 

Do You Need an Attorney?

Anytime you deal with a legal matter, you should hire an attorney. The law is incredibly complex and it’s true that law enforcement and insurance companies will use anything you say against you if it benefits them.

When you hire a lawyer, you benefit from attorney-client privilege. We can help you build your case and navigate the complicated legal system.

Click here to contact us today to schedule a free consultation and learn more about how we can help you.