What Does Attorney-Client Privilege Really Mean?Last updated on: October 11, 2022
The aftermath of an accident can be a confusing time for victims. Much time may be spent trying to determine your legal options and whether you may be able to pursue compensation for your injuries or not. While seeking answers to these and other questions, keep in mind that an experienced personal injury attorney may be able to help you greatly by answering many of your questions promptly.
You may be hesitant about speaking to an attorney and sharing personal details about the accident or yourself, but a free consultation after your accident may be your best ticket to compensation. At this point, you are probably wondering, ‘What is attorney-client privilege?’
The information you share with the skilled injury lawyers at Zinda Law Group remains confidential. Schedule your own free consultation to determine your legal options today by calling (888) 541-6283. If we are not able to win your case, you will not owe us anything.
What Is The Meaning Of Attorney-Client Privilege?
Arguably, one of the most important legal principles within the legal field is the principle of attorney-client privilege. While this privilege is often thought of in terms of encouraging a criminal defendant to be fully open with his or her criminal defense attorney in order to allow the attorney to mount the best possible defense, the attorney-client privilege applies also to civil cases.
Attorney-client privilege is a legal privilege that protects confidential information you have shared with your attorney and allows you to keep any such information secret. Attorney-client privilege is the product of a general societal understanding of the need for clients to be able to be comfortable sharing information with their attorneys—including any potentially embarrassing or relevant details that may be detrimental to their case—without fear of those details potentially being shared or used against them. With this privilege, your personal injury lawyer is able to have an accurate understanding of your situation and case in order to provide more accurate and applicable legal advice.
The privilege prevents an attorney from revealing information or communications shared with them by their client. Typically, attorney-client privilege will be asserted when there is a legal demand for protected communications, such as through a discovery request by the other party in a lawsuit or through a demand that your lawyer testify under oath. However, if there is an attorney-client relationship and the privilege applies to the information in question, the attorney cannot be required to disclose or share the information, even by a court.
When Does The Attorney-Client Privilege Apply?
While attorney-client privilege protects most communication between a lawyer and client, there are certain requirements for the privilege to apply. Specifically, four criteria must generally be met:
- The communication occurred between the attorney and his or her client.
- The attorney is acting in his or her professional capacity.
- The communication was for the purpose of seeking legal advice.
- The client intended that the communication remain confidential.
What Types Of Communications Are Protected By Attorney-Client Privilege?
If these four criteria are met, the communication will generally be protected by attorney-client privilege. Furthermore, privileged communications between you and your attorney can take many forms, including any oral or written conversations about the case that satisfy the above criteria, such as:
- Voice messages
- Text messages
- Phone calls
- Zoom or other similar audio-video conferencing calls
Finally, privileged information that may be protected by attorney-client privilege may even include some non-verbal or non-written communications, such as the client or attorney shaking his or her head or nodding his or her head in agreement.
When Does The Attorney-Client Privilege Does Not Apply?
While attorney-client privilege protects most communication between the client and his or her attorney, it does not automatically make all communication confidential between the client and attorney.
First, as the client, you have the right to waive that privilege and allow your attorney to share the information if you choose. Since attorney-client privilege is the client’s privilege, you will generally be the only person who can waive this privilege.
However, there are some limited exceptions that may void the privilege. While specific laws about what information is protected by attorney-client privilege and the potential exceptions to this privilege typically vary from state to state, there are some common exceptions that may be recognized in many states.
Potential exceptions to attorney-client privilege include situations where the communications in question did not satisfy the necessary criteria to create privileged communications, such as:
- Discussions on social media, because such communications do not meet the requirement of occurring exclusively between you and your attorney
- Emails sent to your attorney from your work email account
- Discussions that occur in a public place, such as talking over lunch at a restaurant
- Discussions with your attorney with someone else in the room
While it is generally wise to take advantage of the broad protections and confidentiality between you and your attorney created by attorney-client privilege, you should also be aware of the potential exceptions to this privilege.
If you are concerned about potentially sharing certain information with your attorney, you should first review attorney-client privilege with your attorney and discuss your concerns. Your injury lawyer can help you understand the limitations of attorney-client privilege in your state, what information will be protected under the privilege, and when he or she may have any legal obligations to share certain information you share.
The Crime-Fraud Exception And Law Enforcement
If disclosure of the confidential communications is “reasonably necessary to prevent reasonably certain death or substantial bodily harm,” your lawyer may choose to reveal the confidential information as necessary to prevent the harm from occurring, such as by warning the intended victim.
For example, if you tell your attorney about any crimes you intend to commit, your attorney may choose to violate the attorney-client privilege. Such harm is ‘reasonably certain’ to occur if the harm will be suffered imminently or if the attorney believes that there is a present and substantial threat that a person will suffer this harm at a future date if the attorney does not take the necessary action to eliminate the threat.
In addition to obligations or options to disclose communications if you express an intent to commit a violent crime, your attorney may also have a legal obligation to disclose information if you have admitted to an intention to commit fraud or admitted to actively committing fraud related to the current claim involved in the case in which the attorney is representing you.
Importantly, sharing information with your personal injury attorney about any preexisting conditions or injuries is generally not considered to be fraudulent intent on its own; rather, this information is important to disclose to your attorney as soon as possible in order to best help them build a compelling case and prepare a defense to any claims the other party or insurance company may attempt to make against you.
What Is The Difference Between Attorney-Client Privilege And Confidentiality?
It is important to note the difference between attorney-client privilege and attorney-client confidentiality. Attorney-client privilege prevents attorneys from being forced to share their clients’ communication.
There are several parties in a lawsuit that can benefit from learning your information.
Insurance companies might want to learn about private communication with your attorney and use your information to minimize your potential settlement amount. Even judges or police officers might try and learn about your private communications with your attorney to find out more about other cases or investigations.
Not only might these entities attempt to learn about private communications between you and your attorney, but they might also be interested in your attorney’s work product. The attorney’s work product is also protected under attorney-client privilege, and it covers the notes, mental impressions, and strategies that your attorney develops while working on your case.
Attorney-client confidentiality, on the other hand, is one of many rules of professional conduct that a lawyer must follow. It is an ethical obligation that prevents lawyers from disclosing their clients’ information for privacy reasons.
This obligation often does not apply when the information about the client is generally known to the public. However, most attorneys do not reveal any information they obtained during the representation of their clients to ensure that they are in compliance with the rules of professional conduct. In rare instances, such as those described above, attorneys are required by law to reveal certain information.
Why Is It Important?
Lawyers must comply with the Model Rules of Professional Conduct set forth by the American Bar Association. Rule 1.6 of the Model Rules describes the lawyer’s responsibilities when it comes to client confidentiality, stating that “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”
There are very limited circumstances under which lawyers may reveal a client’s information, such as the crime-fraud exception, which we described earlier. Attorney-client privilege and attorney-client confidentiality protect your communications with your attorney, which can preserve the strength of your case.
Frequently Asked Questions
Can Attorney-Client Privilege Ever Be Broken?
As mentioned earlier, there are a few ways that attorney-client privilege can be broken. You can assertively waive it if there is information you want to disclose to the court or you can waive it if you publicly discuss information about your case.
The circumstances under which your attorney may break attorney-client privilege are laid out in Model Rule 1.6(b). A few of those circumstances include:
- To prevent reasonably certain death or substantial bodily harm
- To secure legal advice about the lawyer’s compliance with the Model Rules
- To comply with other laws or a court order
What Does A Special Master Do?
A special master is a neutral third-party, usually an attorney, that the court appoints to oversee a case. A special master can help the parties go through their privileged and protected material to clarify what information is in fact privileged. This can be particularly helpful for a case in which an attorney is accused of breaking client confidentiality.
What Can Happen When An Attorney Breaks Client Confidentiality?
An attorney might break client confidentiality to conform with the Model Rules of Professional Conduct, but there can be severe consequences for an attorney who breaks client confidentiality in a way that conflicts with the Model Rules. In those cases, the client might be able to file a professional malpractice claim against the attorney.
Contact Zinda Law Group Today
At Zinda Law Group, our experienced attorneys have recovered compensation for numerous clients across multiple jurisdictions. Your case will be handled with compassion and expertise, allowing you to rebuild your life without worrying about whether your claim is being handled well.
If you or a loved one has been injured, call Zinda Law Group today. Our No-Win, No-Fee Guarantee means that you don’t pay anything unless you receive a positive verdict.
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