The Attorney-Client Privilege
The purpose of the attorney-client privilege is to encourage candid communications between clients and lawyers. This helps lawyers advocate more strategically for their clients and makes the adversarial process more effective. In general, the attorney-client privilege prevents attorneys from revealing information provided to them by their clients. It usually prevents other parties from compelling a lawyer to disclose this information as well. However, there are some exceptions to the rule that are discussed further below.
In most situations, the privilege also extends to communications between a prospective client and an attorney. Even if you never actually hire a lawyer to represent you, they probably cannot reveal information that you told them during a preliminary consultation. That said, you should be careful about revealing confidential information to an attorney whom you have not yet hired unless you have confirmed that the privilege will apply.
The Scope of the Attorney-Client Privilege
For the privilege to apply, a client or a prospective client must be seeking legal advice from the attorney. They must intend the communication to be private, as shown by the circumstances. The attorney must be acting in a professional role, rather than simply discussing the client’s situation with them as a friend. The privilege applies to both oral and written communications. An attorney can reveal the information to other people who are working with them on the client’s case, such as junior attorneys and paralegals at their law firm.
Only the client can waive the privilege. However, the privilege may be lost if a third party is present during a conversation between the attorney and the client. This means that there is no expectation of privacy under the circumstances. The privilege also may be lost if the client tells someone else about their conversation with the attorney. That person can testify about the conversation if they choose or are required.
The Duty of Confidentiality
A concept similar to the attorney-client privilege is the duty of confidentiality. While the attorney-client privilege is a formal rule that prevents an attorney from testifying about a client’s statements, the duty of confidentiality covers any discussions about a client’s case. It may extend to information about the case that came from someone else. A lawyer must keep this information private if it is related to their work for the client.
Disclosing Misconduct by a Client
Previous crimes or wrongful actions by a client probably will be covered by the attorney-client privilege. This is true regardless of whether the misconduct related to the specific matter in which the attorney is representing the client. On the other hand, the privilege will not apply if the misconduct will happen in the future. In other words, if a client consults a lawyer to determine whether they can get away with a crime, the lawyer will not be obliged to stay silent about the client’s criminal plans. Moreover, state ethical rules usually require an attorney to report information if they reasonably believe that this will prevent death or serious injury. If a client tells an attorney that they are planning to kill their spouse for cheating on them and asks about the defenses that may be available, for example, the attorney likely will be required to tell the police about this threat if it seems credible.
