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How Far Does Attorney-Client Privilege Really Go?


Most of us have heard of attorney-client privilege; whether we’ve had some experience with the court system or not. Depictions of attorney-client privilege are all over movies, TV, and the news and are usually shed in a not so flattering or conflicting light. Whether portrayed by a crooked lawyer who passionately defends guilty clients; an upright lawyer with tied hands in revealing the truth; or a malicious client who attempts to manipulate the law, there are a lot of misconceptions about what attorney-client privilege really is. So, let’s separate fact from fiction and find out how far real-life confidentiality with a lawyer really goes?

What is attorney-client privilege?

Attorney-client privilege dates back to the 16th century and is one of the oldest forms of confidential communication within the legal system. Since then, it has prevailed in one way or another in many countries’ judicial systems. In America, this privileged communication is a reasonable expectation of privacy between a client and his or her lawyer. In a nutshell, this means that whatever revealed between them will not be disclosed to any third party without the client’s permission.

This strict confidentiality is expected to be maintained throughout and after representation, and even after the client’s death. The objective of such strict discretion is to limit or prevent other parties from using or manipulating such information to the detriment of the client and their interest. It also encourages the client to reveal specific or unflattering details to their lawyer. This level of transparency aids them in obtaining sound and thorough legal advice as well as adequate representation.

The most crucial benefit of this privilege is that it maintains a level of openness, trust, and integrity that’s necessary for a strong attorney-client relationship.

The goal is justice

Contrary to popular belief, this rule was not created to help guilty people get away with their crimes, nor is it something for lawyers to hide behind. This rule is more for the client and their right to confidentiality, which can be waived at any time than it is for the lawyer who can never wave it. Its objective is to protect the client’s right to a fair trial and to establish and promote a balanced and fair judicial process regardless of presumed guilt.

With any rule of law, there will always be those who try and are even successful at bending and exploiting it—even lawyers. However, this doesn’t negate the need or benefit of attorney-client privileged communication and how it aids in our judicial systems aim for justice.

The limits of attorney-client privilege

Nevertheless, with all its Hollywood drama and glamour, this rule does have its limits. For example, attorney-client privilege only applies between an actual client and his attorney. This guideline means that information should only be shared with a lawyer who represents or plans to represent the client. Also, such information cannot be expressed within the presence of a third party. If there is any other source from which this information can be derived, the attorney cannot be held liable for its discovery.

Another limitation is that confidentiality can only be expected as it pertains to obtaining or assisting in legal representation. It cannot be used for covering up, committing, or intending to commit a crime, fraud, or cause death or physical injury to another.

If a lawyer maintains confidentiality for such reasons or with such knowledge, the attorney-client privilege becomes void. The lawyer can also be called as a witness, disbarred, and possibly charged with a crime. These sorts of scenarios are referred to as the crime-fraud exception. In some states, a client’s intent has to be criminal to lose his/her privilege; however, in other states, a civil tort also qualifies.

This exemption leads to another limitation which is that attorney-client privilege varies from state-to-state, from federal to state, and on a case by case basis. Statues, evidence, and previous court decisions can alter the application. These are just a handful of exceptions to this legally protected and confidential relationship.

Others include but are not limited to:

  • The death of a client (in cases of probate)
  • Perjury (if one’s lawyer is fully aware that their client is lying on the stand)
  • Suborning perjury (when a lawyer knowingly presents false testimony)
  • Overriding public policy (when maintaining confidentiality between a lawyer and client contradicts an established policy)
  • Fiduciary duty (in the case of corporations and its shareholders)
  • Common interest or joint defense exceptions (when a lawyer has more than one client for the same case)

Talk to a lawyer

As you can see through this simple and brief overview, the attorney-client privilege is not as clear cut as the general public might believe. There are many things to consider when confiding in a lawyer that goes way beyond a Hollywood script. However, to find out more about how it applies to your circumstances or case, contact a lawyer in your state. If you are in California, contact us.

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