What is the Attorney Client Privilege?

The attorney client privilege preserves the confidentiality of communications between an attorney and his client. It is based on the premise that clients should be encouraged to be completely honest and open with their attorneys so that the attorney can give the appropriate advice. If those communications were not privileged, clients may be reluctant to be as forthcoming with information for fear of discovery. This could hurt the case tremendously. The law recognizes this potential problem and protects those discussions.

Although it is the attorney's responsibility to inform his clients about the privilege, the privilege belongs to the client and can only be waived by the client. It cannot be unilaterally broken by the attorney. It even extends beyond the death of a client. It also extends to employees of the attorney, like his paralegal.

The privilege attaches to virtually all communications, both oral and written, made by a client to his attorney during the course of the attorney's representation of the client. It may not shield discussions with that same attorney once that attorney-client relationship ends. It does not attach to every communication made by anyone to an attorney.

One of the first considerations courts review to determine the existence of the attorney-client privilege is the existence of an attorney-client relationship. This does not mean that you must have a signed retainer with a lawyer in order for the privilege to attach. When a client is attempting to hire an attorney, he must necessarily divulge information to the attorney which may be sensitive, damaging or otherwise undesirable for the other side to obtain. In such instances, the communications with the potential attorney are privileged even if you decide not to hire him or he decides not to take the case.

This does not mean that every conversation you have with a person who happens to be an attorney is automatically privileged. Obviously, if you did not know the person was an attorney when you make the communication, it will be hard to argue that the privilege should attach to the communication. Also, if you are not making the communication for the purpose of requesting or receiving legal advice, the privilege may not attach. Courts generally review the facts objectively to determine what expectations a reasonable person would have.

Another factor courts look to in determining whether an attorney-client relationship exists is whether there is a reasonable expectation of privacy viewed from an objective standpoint. If a client tells his attorney information in the presence of other people not connected with the case, there may not be enough of an expectation of privacy to support attaching the privilege to the communication. The law may determine that in such an instance, the client could not reasonably have expected the communication to be privileged if the information is openly shared with others.

There may also be instances in which a future threat of imminent death, bodily harm to another or future criminal activity could provide an exception to disclosure of the communication to the appropriate authority. Also, just because an attorney may not divulge the privileged communication does not mean that he can suborn perjury. The ethical rules prohibit an attorney from taking testimony from a witness he knows to be false. This may have particular significance in a criminal case if the client has admitted guilt to his attorney and then attempts to deny the guilt under oath at trial. Also, the privilege does not support hiding physical evidence of a crime.

Most ethical rules also attempt to address the situation where the privileged communication is accidentally disclosed to another party. Those rules require the receiving attorney to immediately return the privileged communication, without copying it, and prohibits the use of the evidence at trial. In such instances, courts look very carefully at the circumstances surrounding the "accidental" disclosure.

If you are in doubt, it is a good idea to ask the attorney whether the communication will fall under the attorney-client privilege before disclosing the information. It may also be a good idea to ask the lawyer if any other consequences may be involved with disclosure of information even if the information is covered by the attorney client privilege.