October 08, 2020
You might be placed in a situation where you need to consult a business attorney for a legal matter at some point in time. As you go through the list of questions for a prospective attorney, you might become worried about sharing too much sensitive knowledge in fear of that information falling into the wrong hands in the future.
Of course, you might be aware that any attorney you hire is under obligation to keep communications between the two of you confidential under the attorney-client relationship, but does the same confidentiality clause apply to the initial consultation before a contract has been signed? Is everything you tell your lawyer protected? Can your attorney be forced to disclose the details of your conversations if called to testify in court?
To ease clients’ worries and make them feel more secure from the potential risk, there is an important legal concept called attorney-client privilege.
What is Attorney-Client Privilege?
The concept of attorney-client privilege is one of the most fundamental and powerful legal concepts in American jurisprudence, as it protects the confidentiality of communication between attorneys and their clients.
Anything you discuss with your lawyer that pertains to a legal matter or case is confidential, and your attorney cannot divulge your secrets, nor be forced to disclose those secrets to anyone else, including the criminal justice authorities. Your attorney is also forbidden from using confidential information against you or for their own benefit or purpose. There are a few exceptions to this rule, but in most cases your attorney cannot volunteer to testify about the information you shared with them, nor can they be forced by the courts to do so.
The reason for instituting attorney-client privilege is not only to embolden clients to seek legal advice, but “to encourage full and frank communication between attorneys and their clients”.
If you are not afraid that your statements to your attorney might become evidence, you are more likely to be open and honest about the circumstances of your legal case, which will allow your lawyer to give you proper advice and prepare the best and most effective representation.
Under the protective scope of attorney-client privilege, you will be more likely to divulge sensitive, painful, embarrassing, and sometimes even self-incriminating details surrounding your legal case knowing that your attorney cannot discuss anything said between the two of you with anyone else without your consent.
This powerful rule stays in effect even after the attorney-client relationship ends. In fact, it remains in full force even if the client dies.
How Does Attorney-Client Privilege Work?
In order for the attorney-client privilege to exist, there should be proof of the 5 Cs:
- Communication. Almost all types of communication between you and your attorney are covered by the attorney-client privilege. This includes your oral statements, written exchanges, and all electronic communications.
- Client. You as a client are the one communicating with your attorney. You do not need a retainer nor a contract for the attorney-client privilege to be in effect. An oral agreement is legally binding, so any information you share with the lawyer will be protected, even if it is just an initial consultation and you decide not to hire the attorney. A company could be a client as well. In that case the attorney-client privilege protects the communications between the employees and company attorneys (they could be “in-house” lawyers or “outside” legal counselors at a law firm.)
- Confidentiality. All communication has to be confidential, which means that it is valid only between you and your attorney (or other professionals helping the attorney, like paralegals, investigators, or other staff.)
- Counsel (legal professional). The attorney-client privilege protects the confidentiality of communications you as a client made to your counsel (a lawyer), including anyone who assists your attorney in your legal representation.
- Counsel (legal advice). All the communications that are exchanged between you as a client and your attorney has to be for the sole purpose of seeking (providing) legal counsel. The attorney has to act officially as a lawyer, and not as a business consultant or a friend.
Attorney-Client Privilege Exceptions
The attorney-client privilege concept pertains to the communications between you and your lawyer. The information exchange is based on your legal case and everything you say, write, and document is protected under this rule, as long as it is connected to the case at hand and all the facts surrounding it.
Well, almost everything.
There are a few exceptions where the attorney-client privilege stops applying and you should make sure to be informed of each one of them in order to protect your interests.
- Privilege waiver. If you share information regarding your legal case with your attorney and later on repeat the same information to a friend or a family member, you will lose your attorney-client privilege. Your attorney is still legally bound by the rule, but nothing prevents your friend or family member from disclosing that information either voluntarily, or as a result of a court subpoena.
- Intention to commit a crime. Attorney-client privilege is a benefit to you as the client, with sole purpose to protect the communication exchange between you and your legal counsel so that you can get the best representation under the law without fear of sabotaging yourself at a trial. If your lawyer has knowledge of a crime or fraud you committed, they have to keep it confidential. The exception occurs if you as a client show clear intent to commit a crime in the future. Your attorney might be under obligations to reveal your intention to commit said fraud or crime, especially if there is a possibility of someone getting seriously hurt as a result of your planned actions.
- Third-parties. If you exchange relevant information with your attorney in the presence of a third party, the communication may not be protected under the attorney-client privilege. For example, if you discuss your case with your attorney in a public place and you are overheard, you cannot prevent the person who overheard your discussion from testifying in court under the protection of attorney-client privilege.
Summary
In general, any information you share with your attorney which pertains to your legal issues will be covered by attorney-client privilege, even if you don’t end up hiring that lawyer to represent you. You have the right to ask questions and seek legal help without fearing that you might endanger yourself and jeopardize your legal standing. But in order to have a peace of mind, you should address the topic of attorney-client privilege during your initial consultation before you divulge any pertinent information you’d like to keep confidential.
Sources:
https://advocacy.acc.com/attorney-client-privilege/
https://caselaw.findlaw.com/us-supreme-court/449/383.html
https://www.cohengresser.com/pdfs/publications/070101421Cohen.pdf
