Confidential Conversations: Protecting Attorney-Client Privilege
Filing or defending a lawsuit is a major life event, a life event most people do not want to experience. It’s also one of the few major life events that you cannot fully share with your friends and family, at least while the lawsuit is going on. Why? Because of that pesky (but very helpful) thing known as the attorney-client privilege.
Everyone has heard of the attorney-client privilege, but what is the privilege exactly? First, it is not the end all, be all protection for any and all communications with an attorney. What many people don’t know is that the attorney-client privilege can be broken. The attorney-client privilege protects confidential communications between clients and attorneys. The key is that communications between CLIENTS and attorneys are protected–not communications that include third parties.
The attorney-client privilege allows for and encourages open and honest communications between clients and attorneys. With the privilege, clients can share sensitive information with their attorney without the fear that the attorney will later disclose that sensitive information to others. The privilege also protects communications from being compelled as evidence in court. The general rule is that attorneys cannot be compelled to disclose confidential client communications during legal proceedings.
Specifically, the privilege shields the disclosure of communications that are made for the purpose of seeking and receiving legal advice. Communications – both verbal and in writing – about legal rights, case strategies, and matters related to the representation of a client are all protected under the attorney-client privilege. The privilege is not absolute, however. The privilege does not apply to any communications made for the purpose of committing a crime or fraud, and it may not apply if the attorney-client communication is made in the presence of a third party who is not essential to the attorney’s legal representation of the client.
The client holds the attorney-client privilege, which means the client can also waive the attorney-client privilege. Unfortunately, this sometimes happens without the client ever meaning to waive the privilege. If a client voluntarily discloses privileged information to a third party, the privilege is waived. This waiver can be something as simple as a client sharing their attorney’s legal advice or case strategy with a close friend or relative. In our digital world, texting, emails, and social media, make it easy to unintentionally make this disclosure without even thinking about it. The waiver can be completely innocent, but it can’t be undone. The best practice is always to keep conversations between the attorney and client and to otherwise wait until the lawsuit is over.
Not being able to talk through a lawsuit with a friend or family member can be incredibly frustrating. A lawsuit is stressful, but that’s why it’s even more important to trust your attorney, to talk to your attorney, and to keep the lines of communication open with your attorney. An attorney and client are a team. Trust and candor are key to making the attorney-client relationship work, and the attorney-client privilege is critical to fostering an open and honest relationship.
These materials are made available by Stibbs & Co., P.C. for informational purposes only, do not constitute legal or tax advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Stibbs & Co., P.C. The facts and results of each case will vary, and no particular result can be guaranteed. The facts and results of each case will vary, and no particular result can be guaranteed.
