Attorney-Client Privilege: What It Means For You

Attorney-client privilege is a concept that most non-lawyers have heard of. It comes up often on Law & Order and in John Grisham novels. However, it is often misconstrued in popular fiction. Below, we will explore what attorney-client privilege is and what exceptions exist.

What is attorney-client privilege?

Attorney-client privilege is, at its core, a guarantee that confidential communications between a client and a lawyer in order to receive legal advice will not be disclosed to any other party. The public policy behind keeping communications privileged between clients and their attorneys is the idea that it would be difficult for anyone to get competent legal advice if they were afraid to share all the facts of their case with their attorneys. Attorney-client privilege protects communications between an attorney and a client that are made with the purpose of gaining legal advice or assistance. Pursuant to attorney-client privilege, neither the attorney nor the client can be compelled to reveal the content of the privileged communications.

What is a privileged communication and what are the exceptions to attorney-client privilege?

Any communication between an attorney and a client for the purposes of legal advice or counsel qualifies as privileged communication. This means not only spoken and written words, but also gestures and even complete silence may qualify if they are intended to convey information. However, it is also important to understand the exceptions to the privilege.

The first exception is waiver. Waiver may occur because the client expressly waives privilege and allows the attorney to share information with another person. Waiver may also occur if the communications in question are not kept confidential. For example, if a client shares information with the attorney while a third party is present, the information shared in that meeting will not be privileged. The same will be true if the client copies a third party on an email to the attorney.

The second exception to attorney-client privilege is when information is discoverable in some other way. If information is discoverable, it is not privileged just because it has been communicated to an attorney. The best way to think of this is that the privilege attaches to the communication, not the underlying information, so while a lawyer may not be forced to reveal that her client told her the information, she also cannot keep the information out of court if it is discovered in some other fashion.

The third exception is the common-interest exception. If two clients are represented in the same matter by one attorney, neither client may assert privilege against the other in any future litigation pertaining to the subject matter of the joint litigation.

The fourth exception is the death of a testator. If there is litigation between heirs of a testator (decedent who leaves a will), the decedent’s attorney may be required to testify about the decedent’s communications regarding the will.

The fifth exception to privilege is the crime or fraud exception. Communications between an attorney and client in an effort to commit or further a crime or fraud are not privileged. This exception includes conspiracy to cover up a previous crime. However, it does not include communications about the facts of any already completed crime.

The attorney-client privilege is one of the most important aspects of the attorney-client relationship. It allows the client to feel confident that what they say to their attorney is confidential, thereby allowing attorneys to collect the information they need to provide the most effective assistance possible. If you need assistance with any legal matters, please contact the attorneys at McNeelyLaw LLP.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.