Similar to the attorney-client privilege, a duty of confidentiality covers communications between a lawyer and a client. This applies to oral and written communications by the client to the lawyer and by the lawyer to the client. An attorney cannot reveal the contents of these communications without getting consent from the client. In the criminal justice system, the duty applies to public defenders as well as private attorneys.
However, there are several types of situations in which the duty of confidentiality may be waived. For instance, the protection does not apply if the lawyer and the client do not have a reasonable expectation of privacy in a place where they are holding a conversation. If other people overhear an audible conversation between them in a public place, they may be able to testify about the contents of that conversation in court. Sometimes this rule arises when a client discusses a case on a cell phone in public.
Inviting the Presence of Third Parties
Defendants should probably limit the presence of third parties during conversations with their attorney unless the presence of the third party is necessary.
A defendant may ask a friend or family member to join them in a meeting with their lawyer. This may result in a waiver of confidentiality for that conversation, since those third parties are not part of the relationship between the attorney and the client. In theory, the prosecutor could ask the third party to testify about the conversation, or sometimes the prosecutor might even be able to ask the defendant to testify. If the defense attorney can persuade the judge that the presence of the third party was necessary to further their representation, the conversation will remain confidential. The third party might have played a critical role in helping the lawyer understand the facts of the case or develop their strategy. The court also may consider whether the defendant intended the conversation to remain confidential.
Realistically, it is unlikely that the prosecution will find out about a certain meeting that involved the presence of the defendant’s family member. Even if they find out, they probably will not ask the family member to testify in court about the conversation unless it was critical to the case.
Disclosing Statements to Third Parties
If a defendant later discloses the contents of a conversation with their attorney to a third party, the confidentiality of that conversation will be waived. There are exceptions to this rule for spouses and sometimes religious figures, such as priests. In general, though, once a defendant voluntarily reveals information, they have no further expectation of privacy.
Conversations in Jails
A conversation in a jail or prison is confidential if the client and the attorney use a private area in the facility to talk and do not talk loudly enough for others to hear them. Phone calls can pose more complicated questions. The defendant must be careful to avoid eavesdropping by prison officials or other inmates, which can waive the duty of confidentiality. Guards or inmates might claim that the defendant was talking loudly enough to be overheard. This would allow them to testify about the conversation. Speaking with an attorney in person at a jail through a glass partition may raise similar concerns.
Phone Calls May Be Monitored
Conversations only remain confidential if they are not overheard. A prisoner warned that phone conversations may be monitored should assume that anything said over the phone is not confidential.
If prison authorities tell a defendant that their phone calls may be monitored, this warning may remove confidentiality for any phone calls that the defendant makes afterward. A prison guard who hears a defendant discuss the facts of their case with their lawyer may be able to testify about what they said.