Breaking Down Attorney-Client Privilege: What It Means and How It Can Affect Your Case
Attorney-client privilege is an ancient and fundamental legal principle that ensures communications between you and your lawyer remain confidential. In particular, it prevents communications between you and your lawyer from being used as evidence against you in a legal proceeding.
Honesty vs. Candor
Honesty means telling the truth. You can still be honest while keeping your mouth shut about certain matters. Candor means being honest, plus saying everything that is on your mind.
Answering “no comment” when you know the answer to a question is an example of honesty without candor.
Think about the things you might need a lawyer to do for you. This makes it easier to understand why it is absolutely critical for you to be both honest and candid with your lawyer.
You’re not likely to communicate in this manner unless you have an assurance that nobody can use the things you say to your lawyer against you. Attorney-client privilege provides you with that assurance, though there are exceptions (see below).
What Attorney-Client Privilege Prevents
Once attorney-client privilege exists, it prevents:
- Disclosure of anything you say to your lawyer in confidence being shared without your consent.
- Use of confidential communications as evidence in court against you.
- Third parties from legally demanding that your lawyer reveal the contents of your communications.
The danger arises, however, when you think that attorney-client privilege exists when it really doesn’t. A “good faith” belief almost certainly won’t be enough to protect your interests.
The Legal Elements That Trigger Attorney-Client Privilege
Attorney-client privilege exists when all of the following elements are present:
- You consult a professional licensed as an attorney for legal advice.
- You establish an attorney-client relationship.
- You intend the communication to remain confidential.
- You communicate to seek or provide legal advice.
The privilege, along with the attorney’s duty of confidentiality, generally requires your attorney to keep communications secret indefinitely, even after your relationship with your attorney ends.
What Is the Scope of Attorney-Client Privilege?
Attorney-client privilege:
- Covers all confidential communications between you and your attorney;
- Applies to any legal advice you seek or receive during your relationship with your attorney;
- Includes all forms of communication, such as written, oral, and electronic, between you and your attorney; and
- Protects the confidentiality of your discussions about past, present, or future legal actions.
A number of exceptions apply to attorney-client privilege (see below).
What Are the Major Consequences of Attorney-Client Privilege?
Once you have attorney-client privilege to protect you:
- Your lawyer cannot divulge any confidential information about their representation without your permission.
- Your communications are shielded from court subpoenas and other legal inquiries.
- You can speak honestly and candidly to your attorney, which results in better legal representation.
- Any breach of this privilege by your lawyer can lead to negative legal consequences for the attorney, and potential mistrials.
Remember that your lawyer cannot get you into any legal trouble by violating this privilege. Even if your lawyer violates this privilege, nothing they say can be used against you.
What Are the Major Exceptions to Attorney-Client Privilege?
Pay attention to these important exceptions to attorney-client privilege:
- It applies to information, not physical objects. You can’t keep a gun out of evidence by giving it to your attorney, for example.
- There is a future crime-fraud exception. You can tell your lawyer you already killed your spouse, for example, and it’s confidential. If you tell your lawyer you’re going to kill your spouse tomorrow, however, your lawyer can reveal this information to prevent you from doing so.
- Communication with your lawyer in the presence of third parties. The communication is still confidential if the third party was an eavesdropper, however, or if the third party is an essential part of the legal team.
- Disclosure that you consented to. Your consent should be specific, and the consent applies only to the specific information included in your consent.
- Disputes between you and your attorney, such as fee disputes, ineffective assistance of counsel claims, or legal malpractice claims. In such cases, your attorney can disclose information that is relevant to the dispute.
- Common interest exception. If you and someone else share a lawyer for a joint matter, communications relevant to this common interest are privileged against outsiders but not between the parties sharing the attorney.
- Corporate lawyers. Attorney-client privilege protects communications between corporate lawyers and the corporation they represent, not necessarily communications with individual officers or employees.
- Probate disputes after you die. If disputes arise over your estate, your attorney can disclose communications between you and your attorney if they are relevant to certain disputes.
Other, less commonly used exceptions also exist.
Legal Gray Areas
Attorney-client privilege law includes some legal gray areas:
- Initial case consultations: Suppose you discuss the details of your case with a lawyer during an initial case consultation. The consultation was free of charge, and you didn’t hire the lawyer. Does attorney-client privilege apply? Possibly. It’s best to get written advance confirmation before you hold the consultation.
- Prison phones: Phone conversations between prisoners and their lawyers are monitored. Attorney-client privilege generally does not apply to these conversations. Some prisons do offer confidential conversations over prison phones, and in these instances, attorney-client privilege probably does apply. Again, it’s best to obtain written confirmation in advance (from prison authorities).
There may be other legal gray areas as well, depending on specific circumstances.
What Is the Attorney’s Duty of Confidentiality?
The attorney’s duty of confidentiality refers to a lawyer’s ethical obligation not to reveal information related to the representation of a client, unless the client consents or another exception applies. It’s a similar concept to attorney-client privilege.
However, the scope of this confidentiality obligation is much broader than attorney-client privilege. Ultimately, the attorney-client privilege is a rule of evidence, which makes it a part of statutory law. The attorney’s duty of confidentiality is an ethical rule that binds the attorney through their membership in the state bar association.
Feel Free To Speak Candidly With Your Lawyer
With the exception of the ambiguity concerning free initial consultations (discussed above), feel free to speak candidly with your lawyer. If you have a personal injury claim of significant size, a Denver personal injury lawyer might turn out to be a practical necessity.
Don’t worry that hiring a lawyer will get you railroaded into a lawsuit that you don’t want. Even if you enter settlement negotiations, your personal injury claim will not necessarily mature into a lawsuit unless you want it to.
Contact our Denver Personal Injury Law Firm Today For Help
For more information please contact Zaner Harden Personal Injury Lawyers to schedule a free initial consultation.
Zaner Harden Personal Injury Lawyers
1610 Wynkoop Street, Suite 120. Denver, CO 80202
(720) 613 9706
24/7
