As a lawyer, an often misunderstood concept that I encounter with both clients and witnesses, is attorney-client privilege. Often, when a person seeks advice from a lawyer, that person has embarrassing, sensitive, or even incriminating information that a lawyer should know in order to provide the best advice. When consulting a lawyer, it is good to understand when it applies and when it does not.
Attorney-client privilege prevents an attorney from voluntarily sharing, or even being forced to share, information given by a client. If clients reveal something in confidence to their attorney in order for the lawyer to give legal advice, it is privileged. Additionally, a client cannot be forced to testify about his or her communication with an attorney. Any communication, whether it be oral communication or a client providing a lawyer documents, can be privileged.
The existence of attorney/client privilege is to encourage clients to make full disclosure to their attorneys. This privilege exists so that an attorney may have the full picture and provide sound legal advice. As attorneys, it is best for us to know the full story. When parts of a story are omitted, legal advice suffers. The privilege begins as soon as clients communicate their desire for the lawyer to represent them in a legal matter and the lawyer agrees to evaluate their legal matter. The privilege exists for the client, even after the client has died.
Not all communications to an attorney are privileged. Communications between an attorney and client are only privileged if they constitute the seeking or giving of legal advice for past conduct or future legal conduct. So, communications not related to the attorney’s legal services are not privileged. Also, if one consults an attorney in order to plan to commit a future or ongoing crime or fraud, the communication is not privileged.
Communication is not automatically presumed to be privileged, even if it is within the scope of an attorney’s legal services. For example, documents do not become privileged just because they are provided to a lawyer. If a document is not confidential prior to providing it to an attorney, sharing it with an attorney does not convert the document into something confidential; a court or another party can still gain access to the document. Similarly, if a client shares facts already known to others, the information itself is not privileged, though the conversation between an attorney and a client remains privileged.
A client can also waive privilege, whether waiver be voluntary or involuntary. The privilege belongs to the client, as it is the client’s information that the rule protects. The client may choose to testify about, or share publicly, information shared with his or her attorney.
Clients should be careful to not inadvertently waive privilege. If a document or communication is shared with a third-party, the communication is no longer exclusively between the attorney and client and the document is no longer privileged. It is important that clients do not share their communications with their attorney with other people who do not have an interest in the legal matter. One common example is a client carbon copying a friend to an email with an attorney. Another example might be a client forwarding emails from their attorney to someone helping pay their legal bills. In a business setting, privilege could be waived if someone sits in on a meeting between a lawyer and their client. However, if the third-party has a shared goal with the client or has a close relationship with the client, such as a parent, including the third-party may not waive privilege.
While attorney-client privilege is typically held by the client, an attorney can use privileged information if the information is used against him or her. If a client pursues litigation that puts privileged communication with an attorney at issue (for example, a client suing their attorney), the attorney may reveal the contents of their communications.
If you are considering legal representation, attorney-client privilege can be of great comfort. So long as you have communicated with an attorney for the purpose of seeking legal advice, are not planning a crime or fraud, and are not sharing the information with other people, your communication to the attorney generally should remain confidential.
This article is meant to be a general overview. Privilege is a case-by-case determination, so consult your attorney if you have a question about whether your communications are privileged.
Curtis Schube is a senior associate at Dhillon Law Group where he practices constitutional law, defamation, politics, and election law.