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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 subborn 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.
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