Court & Hearings

What is 'attorney-client privilege'?

Attorney-client privilege is a rule that protects communication between a lawyer Someone who represents clients in courts or who gives legal advice and their clients. Under this rule, lawyers must keep their clients' communications confidential. Lawyers cannot willingly disclose or be compelled by a court or law enforcement to reveal information communicated by a client. This is meant to ensure clients are open and honest with their lawyers, so the lawyers can provide the best legal advice.

The attorney-client privilege applies to both criminal and civil disputes. Criminal disputes are when someone has broken a law. Usually, in a criminal case, the “state” or government will be the other party A person or business involved in a court case in a role like plaintiff, petitioner, defendant, respondent, or intervenor. in the dispute. Civil disputes, on the other hand, are usually between two people or businesses. These happen when someone thinks another person has wronged them. The person bringing the suit wants the other person to either pay for the damages or do what they were supposed to do. Usually, civil disputes are when people sue one another. However, they also include issues like divorce, immigration, and employment discrimination.

Sometimes, civil and criminal cases overlap. This might happen if someone damages property or hurts another person while committing a crime. For example, if a person gets in a fight and hurts someone, the police can arrest them for assault An unlawful attack by one person upon another person, including aggravated assault, simple assault, and intimidation. or another similar charge. The injured person can also sue them to get money for medical bills, pain, and suffering.

When does attorney-client privilege apply?

It is important to know when the attorney-client privilege applies, and when it does not. In general, attorney-client privilege applies when:

• An actual or potential client discusses their legal issue to get legal advice,
• The lawyer is working in their official capacity (rather than, say, as a friend), and
• The client intends the discussion to be private and has made that clear.

This last step is important to remember when first speaking to a lawyer. Be clear that you are seeking legal representation and want everything to be kept private.

Once a lawyer has taken you on as a client, they cannot divulge your secrets without your permission. This includes written communication.

Are there any exceptions?

A lawyer can share private communications if they believe a client is about to commit a crime. For example, if a client tells their lawyer they plan to harm themselves or someone else, the lawyer must report it to law enforcement.

However, a lawyer usually cannot share information about a past crime. If a client talks to their lawyer about a current legal issue and also mentions a crime they committed Includes juveniles in placement in the facility as part of a court order. in the past, that information is still protected. The lawyer cannot be forced to reveal past crimes, even if they are unrelated to the legal issue your lawyer is working on.

How is this different from a 'duty of confidentiality'?

Both attorney-client privilege and the duty A legal obligation to do something of confidentiality generally last forever, continuing even after the attorney-client relationship ends and, in most cases, even after your death. 

However, attorney-client privilege is a ‘rule of evidence Anything used to show that something is true .’ It prevents lawyers from testifying against their clients or revealing private information to the court. In this way, it’s an exclusionary rule. That means that if a lawyer does break privilege and reveals something, it cannot be used against you.

Lawyers also have a professional duty of confidentiality. This means that, even if something doesn’t fall under ‘attorney-client privilege,’ your lawyer cannot discuss it outside their legal team. However, you can lose your right to confidentiality and attorney-client privilege in several ways. Below are a few, but not all, the ways you may lose your right to confidentiality and your attorney-client privilege.

Speaking with your lawyer in public

If you decide to discuss your case in public, someone may overhear. Anyone who hears this conversation does not have to keep what they hear Listen to and judge a case private. They can testify To answer questions under oath about what you said. This also applies if you are talking on your cell phone. It also applies if you are speaking to your lawyer while in jail or prison. If other people in jail or guards hear your conversation, they can talk about what they heard.

Inviting others into the conversation with your lawyer

Often, people want their friends or family to come with them to see their lawyer. While this is understandable, it may work against you. They may be able to testify about what they heard. This decision is left to the judge. Don’t leave this to chance - talk to your lawyer before bringing anyone along to your meetings.

Telling someone about what you and your lawyer discussed

If you tell someone else what you and your lawyer talked about, that conversation is no longer private. The only exception is if you reveal information to your spouse.

To be clear, talking about your case with others does not automatically end attorney-client privilege. However, saying something like “My lawyer told me to do…” will break attorney-client privilege.

This can be a very complicated issue. If you are worried that something you talk about won’t fall under attorney-client privilege, ask your lawyer first. They have your best interest in mind.

If you believe your lawyer has violated the attorney-client privilege, you can report them. File a complaint with the Attorney Registration and Disciplinary Commission.