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Breaking Down Attorney-Client Privilege: What it Means and How it Can Affect Your Case

— February 15, 2024

Attorney-client privilege allows you to speak openly with your personal injury lawyer about your case without fear of sharing your conversations.

When you schedule a meeting with a lawyer, you have a reasonable expectation of privacy. Most personal injury lawyers provide free consultations even before you decide to hire them. Throughout your case, you will likely communicate with your attorney numerous times. 

It is essential that people can trust their attorneys to maintain confidentiality. The attorney-client privilege prevents the disclosure of your communications with your attorney. Private conversations with your attorney cannot be disclosed to third parties such as competitors, government agencies, and other businesses. Additionally, the attorney-client duty of confidentiality provides even broader protections.

What Is Attorney-Client Privilege?

A clear understanding of attorney-client privilege can benefit anyone seeking legal assistance. This principle ensures that clients can communicate freely and openly with their attorneys without worrying about their statements being used against them in legal proceedings. Confidentiality is critical, and the privilege binds the client, their lawyer, and any third parties involved in the communication. Ultimately, this privilege helps clients work with their attorneys to build the most robust case without fear of negative repercussions.

For example, if you confess to your attorney privately, the court cannot consider your confession as evidence against you unless an exception applies. This protection ensures that you can be honest with your legal counsel and that your confidential communications remain protected.

When Does the Attorney-Client Relationship Begin?

The relationship between an attorney and their client usually begins when the client expresses their desire to hire the attorney for legal representation. The conversation is considered privileged during the initial consultation, even if the client does not ultimately hire the attorney.

Once both parties have signed a retainer or contract agreement, it is clear that the confidentiality agreement applies. However, the attorney-client relationship can begin before a contract is officially signed, regardless of whether the client ultimately hires that attorney. This agreement can be an oral agreement or a fee contract between the parties. It can also be acknowledged by the attorney appearing on behalf of their client in court or other legal proceedings.

The Goal of Attorney-Client Privilege

Attorney-client privilege is a legal protection that promotes transparent communication between individuals seeking legal advice and their lawyers. This protection allows individuals to disclose all relevant information to their attorneys without fearing it being made public. Without this privilege, individuals may hesitate to reveal important information, which could negatively impact their legal case.

Attorney-client privilege assures clients that anything they discuss with their lawyer will remain confidential and won’t be used against them in court. Moreover, lawyers can use this privilege to decline to reveal any information or testimony during legal proceedings or investigations if the issue arises.

What Triggers the Attorney-Client Privilege?

The communication must meet specific criteria for attorney-client privilege to apply:

  • The lawyer must act professionally; casual legal advice, such as at a bar, may not be protected.
  • For communication to be confidential, the intention to keep it confidential must exist during communication. A retroactive declaration is not possible.
  • Your subsequent actions must show that you intend to keep the information confidential to preserve attorney-client privilege.

If you contact a lawyer for representation in a legal matter, you are not required to hire them. However, even if you decide not to hire them, there may still be enough of a relationship between you and the lawyer to trigger attorney-client privilege and confidentiality. This is a legal gray area, so it’s best to confirm secrecy at the beginning of any initial consultation with an attorney.

Exceptions to Attorney-Client Privilege

Attorney-client confidentiality has many exceptions, primarily based on common sense.

Death of a Client

Deadly Synthetic 'ISO' Implicated in At Least 19 U.S. Deaths
Photo by Gabriel on Unsplash

In the event of a probate dispute after your death, your attorney may reveal certain information from your communications to clarify any confusion about your intentions, even if it means breaking attorney-client privilege.

Prevention of Fraud or Crime

If you inform your lawyer about your intention to kill your husband to collect insurance money or commit fraud, your lawyer can disclose this information to the police. Your attorney may have an ethical obligation to report this communication.

Prison Phone Calls 

Attorney-client privilege doesn’t apply to conversations between attorneys and their incarcerated clients. All prison phone calls between attorneys and inmates are not privileged because they are monitored and recorded as part of routine security procedures.

Joint Representation

Suppose you and someone else are jointly represented by the same lawyer, such as in an amicable divorce between you and your spouse. In that case, you cannot assert attorney-client privilege against the other party.

Physical Evidence

The attorney-client privilege doesn’t apply to objects, so giving a gun to your lawyer to hide won’t keep it out of evidence.

There are situations where a court could breach attorney-client privilege. In some cases, only part of a conversation might be protected while the remaining part is not.

How Attorney-Client Privilege Could Affect Your Personal Injury Case

Attorney-client privilege allows you to speak openly with your personal injury lawyer about your case without fear of sharing your conversations. Any information or documents you share remain confidential unless you waive the privilege or a court determines an exception. This helps your attorney plan strategies confidently, knowing you will be honest with them.

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