The Attorney-Client Privilege: When Does It Exist?
Much is talked about in the legal world about the “attorney-client privilege” and what exactly it entails. The rules of evidence are lengthy and complicated. Law students devote countless hours trying to figure them out and lawyers and judges routinely debate their applicability and relevance in the courtroom. The attorney-client privilege belongs to the client. Only the client can waive the privilege and unless and until they do so, their attorney must vigorously defend the client’s right to the privilege. But why do we hold these communications so confidentially?
The privilege is intended to allow a client to speak absolutely freely to their attorney so that the attorney can get the whole story, even if some of the information is or may be damaging to the client. Only by knowing the good and the bad about the case can the lawyer create a strategy that best protects the client. However, it doesn’t take much to lose the privilege. Essential to the attorney-client privilege is an attorney-client relationship. So, just because you meet an attorney at a dinner party, you do not necessarily want to spill all of your secrets. Simply telling an attorney something harmful to you does not create an attorney-client relationship and without a clear attorney-client relationship, there is no privilege.
In addition, if the client spills the beans, then the privilege is lost. This can happen if the client gives the information to a third party intentionally or unintentionally. An email that is protected when originally sent can lose the protection if forwarded to a third party. So, watch the “reply all” button. Finally, the communication must relate to legal services that the attorney is providing to the client. So, again, don’t spill the beans to someone just because they have a J.D. or Esq. behind their name.
There are other issues to consider when deciding whether a communication is privileged such as when two or more attorneys are representing the same client as co-counsel, when the privileged information is communicated to the client’s spouse in a criminal matter, if mutual clients start suing each other, if the client sues the lawyer for malpractice, or if legal assistance is being sought for the purpose of committing a crime or fraud. So, the moral of the story? Keep your mouth shut until you are sure you are engaged in an attorney-client relationship. Then, listen to your attorney and don’t repeat anything outside of the confines of the attorney-client relationship unless your attorney specifically tells you that it’s ok to do so. Following your attorney’s advice just makes good sense. After all, you hired them because they know how to practice law.