In some relationships, you expect your secrets to remain safe. You whisper things to your best friend and hope that they don’t start telling everyone. For Catholics, their relationship with their parish priest is sacrosanct. Whatever they say in the confessional remains in the church. This level of trust and privacy also extends to your attorney. Attorney-client privilege shapes legal representation in several ways.You feel safe spilling all of the details of your case to your attorney because you know whatever you say can’t be used against you in court. This level of absolute trust allows your attorney to provide the best legal defense possible. While these are the basics of attorney-client privilege, there’s a little more you should know.
What is Attorney-Client Privilege
Okay, you’ve got the basics down. What you tell your attorney stays with them. Not to get too melodramatic, but the information your attorney hears basically stays with them to the grave.
In the legal sense, your discussions with your attorney are deemed privileged communications by the judicial system. This privilege is legally binding and can even include third parties. If your privileged discussions are revealed, the court still cannot use the communications against you, and this applies even if you admit fault.
So, what about if someone overhears your communications with your attorney? Are they legally bound by privilege? The answer is yes. The individual eavesdropping on your conversation cannot use your words against you. Even if they report your admission of guilt under oath to the court, it can’t be used as evidence. However, every so often, there is an exception to attorney-client privilege.
When Does Attorney-Client Privilege Start
Attorney-client privilege isn’t an automatic right. In other words, every time you talk to a lawyer, your conversations aren’t automatically privileged. There are a few requirements you both must meet. These include:
The lawyer must be acting in their professional capacity. Asking for legal advice over a few drinks probably won’t qualify for protection.
It must be your intention to keep the communication confidential. This intention must exist at the time the communication occurs. You cannot retroactively declare a communication confidential. In other words, you can’t suddenly decide your words with a random lawyer are privileged if you both end up on opposite sides in court.
Your subsequent behavior must indicate your intention to maintain confidentiality. You might forfeit attorney-client privilege if you disclose the information to others, which means don’t repeat what you say to your attorney. The only exception may be if your attorney is present. Even then, it’s best to discuss this privately with your attorney before opening your mouth to friends and family.
You can also run into a slightly gray legal area. If you simply consult with an attorney about a pending legal case but don’t hire the lawyer, the privilege may or may not apply. Basically, it comes down to if you ask the attorney to confirm the communications are privileged.
Exceptions to Attorney-Client Privilege
So, after bearing everything to your attorney, it may panic you to know there are times when privilege doesn’t apply. Don’t start panicking! Just because there are exceptions, it doesn’t mean any are going to apply to your legal case. Here’s a look at when an attorney may be legally allowed to break privilege.
Physical Evidence
So, evidence is powerful for both sides in the courtroom. As a defendant, there may be some evidence you’d prefer to keep hidden. However, don’t start thinking your attorney is going to help you break the law.
Privilege doesn’t apply if you ask your attorney to conceal evidence. In this instance, your lawyer has the legal obligation to turn the evidence over to the authorities.
You Sign a Waiver
Think of attorney-client privilege as your property. The communications between you and your attorney are something you own. While you can’t sell your privilege, you can waive your rights.
The waiver must meet certain key legal requirements. In other words, a cocktail napkin with your signature probably isn’t going to work. You can sign a full waiver or a limited one if you believe it’s in your best legal interests. A limited waiver is usually your best option. You’re only waiving the rights to part of your communications. You can also reinstate attorney-client privilege at pretty much any time during your case.
To Prevent a Crime
If you provide your attorney with information that can help prevent a death or serious injury to someone else, your privilege may be waived. Your attorney has a legal obligation to prevent a crime from occurring. For example, you’re planning on killing your spouse for financial gain.
If you share this information with your attorney, it’s not covered under privilege, and this also applies to any intent to commit fraud. Your attorney is legally bound to prevent their clients from committing fraud.
Public Settings
There’s nothing wrong with having a conversation with your attorney in public. However, it’s best to keep the conversation casual. You’re protected from most instances of eavesdropping. However, if you’re discussing your case in a voice loud enough to be heard down the hall, it can be seen as a sign you’ve waived privilege.
The good news in this instance is the courts usually rule on your side. The judicial system holds attorney-client privilege sacred and is generally unwilling to rule against it, but this doesn’t mean it’s a good idea to test this legal theory.
Joint Representation
Sometimes, your case may be tied to another party, which typically means the addition of another lawyer. Since the other lawyer is representing the other party, your conversations with them aren’t considered privileged.
Death
Attorney-client privilege typically remains intact after your death. However, there are times when your attorney can reveal parts of your communications, and this typically applies to wills and probate hearings.
Talk to an Attorney About Privilege
Understanding the scope and limitations of attorney-client privilege is a critical first step before divulging any sensitive information to your attorney.
Attorney-client privilege protects the confidentiality of communications between you and your attorney, ensuring that anything you discuss in the context of seeking legal advice cannot be disclosed to third parties without your consent.
However, it’s important to clarify when this privilege starts to apply and under what circumstances it may not apply. By having this discussion early on, you establish a clear understanding of the protected nature of your communications, allowing you to share information freely and with confidence.
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