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What Is the Attorney-Client Privilege?

The attorney-client relationship is a critical factor between legal professionals and the public. Information shared under the umbrella of the attorney-client privilege is confidential and protected by law. The privilege prevents the forced disclosure of any confidential communications between attorneys and clients. U.S. Supreme Court cases over the years have held that the attorney-client privilege protects:

  • Phone calls
  • Mail
  • Email
  • Text messages

Whenever you consult a lawyer for legal advice, you're protected by attorney-client privilege. Whether you've sought legal help for estate planning or criminal law, your communications are covered by the privilege. However, it is not absolute. This article provides an overview of attorney-client privilege.

What Is the Attorney-Client Privilege?

The U.S. Supreme Court established a four-factor test in Upjohn Co. v. United States to determine whether the attorney-client privilege applies. According to the test, to establish the privilege:

  • The person or entity asserting the privilege must be or have been an actual client. In other words, a third party cannot claim the privilege to protect their own interests.
  • Communication must be to an attorney while acting as an attorney. Asking for legal assistance at a party is usually not privileged.
  • Communication must be by the client to the attorney in confidence to secure legal services or an opinion (not committing a crime or fraud). Hypothetical discussions at dinner parties about committing the perfect murder are not protected.
  • The client must invoke their privilege (without waiving it). The client cannot claim the attorney told them how to violate attorney-client privilege by way of proving it existed.

Many people have challenged the scope and duration of attorney-client privilege, but they have not narrowed the scope beyond its few exceptions.

What Does the Attorney-Client Privilege Protect?

Attorneys owe clients and potential clients a duty of confidentiality. Confidentiality protects all attorney-client communications when anyone asks for help with a legal matter. This promotes frank and truthful discussions between attorneys and their clients. A prospective client can discuss sensitive information without concerns about where it might end up.

The clients hold the privilege. In most cases, only clients can waive it, not their attorneys. The privilege begins with the initial consultation and survives the termination of the case. In some cases, the privilege may outlast the client's death. In Swidler & Berlin et al v. United States (1998), the Supreme Court cited the privilege and its common-law roots when rejecting an attempt to obtain a deceased attorney's notes.

The privilege is most commonly asserted when responding to discovery requests or seeking to avoid testifying about certain matters under oath. The privilege only protects confidential communications between clients and attorneys. This means that the presence of a third party can act as a waiver under some circumstances.

When the Attorney-Client Privilege Doesn't Apply

Despite the broad scope of the attorney-client privilege, it is not absolute. Under the American Bar Association's Model Rules of Professional Conduct, attorneys can disclose privileged information as needed for client representation. Attorneys can share documents with their support staff. Court-filed documents may contain information obtained from their clients. Legal staff are bound by the same duty of confidentiality as their attorney. The attorney must ensure that paralegals and other support staff do not violate privilege.

Attorneys may disclose some information during a dispute with a former client, such as a malpractice claim. In that instance, it may be necessary for a lawyer to disclose information such as billing records or prior client authorizations.

Under ABA ethical rules, lawyers can also reveal confidential information relating to client representation if they believe it is reasonably necessary to:

  • Prevent death or substantial bodily harm: This applies whether the action is due to the attorney's services or not. For instance, if a client consults an attorney on a real estate matter but, during a phone call, says they're on their way to murder their spouse, the attorney may reveal that information.
  • Prevent or minimize substantial injury to someone else's financial or property interests due to a client's crimes or fraud: This only applies when the client used the attorney's services in connection with the crime (called the "crime-fraud exception").
  • Determine whether there is a conflict of interest with other clients: This may happen if the attorney joins a new firm or is part of a merger.
  • Expose lies, in certain locations: Some state bar associations require attorneys to reveal confidential information if they know their client is or may be committing perjury.

The client can waive the attorney-client privilege, whether intentionally or by mistake. Once the client grants a waiver, it's usually permanent. Clients can lose privilege by failing to object to a discovery request seeking privileged communications. Clients may voluntarily waive privilege.

Attorney-client privilege varies from state to state. Some states, such as California, do not require an attorney to reveal any information, even if death or injury may result. Before making disclosures to your attorney, you should ask about these legal issues.

Work Product and the Crime-Fraud Exception

If a client commits a crime with an attorney's assistance, the attorney-client privilege does not protect their communications. Most attorneys will not willingly cover for criminal clients, and those who will often have criminal cases of their own. During the course of litigation, attorneys may become accidental accomplices by drafting letters or legal documents for clients.

Clients can avoid this matter by not using legal counsel to commit crimes. However much you trust your attorney, they are an officer of the court and must always behave with candor toward the court. The crime-fraud exception allows attorneys to claim that the client used their knowledge and legal skills in furtherance of a crime. Then, they may present otherwise protected documents or communications as proof.

Attorneys have a secret weapon in their arsenal: work-product privilege. This doctrine permits attorneys to withhold documents and notes prepared for litigation by the attorney, the client, or a third person. The attorney holds work-product privilege, which is more difficult for opposing counsel to acquire. In most cases, work product is only subject to discovery if there is no other way to acquire the information.

Questions About the Attorney-Client Privilege? Speak With a Lawyer

Clients often assume that the attorney-client privilege always applies when talking with an attorney. Maintaining the privilege requires diligence and consistency. If you have questions about protecting the attorney-client privilege with an attorney or if you may have waived privilege by accident, contact a knowledgeable attorney in your area.

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