Understanding Attorney-Client Privilege

Recently, with the Federal Bureau of Investigation (FBI) raiding the Offices and homes of a prominent US attorney, the mainstream media have been debating issue of attorney- clients privilege. It has been generally taken for granted that whatever information is relayed by a client to an attorney is private. Is this really so?

A rule that preserves confidentiality

The attorney-client privilege is a rule that preserves the confidentiality of communications between lawyers and clients. Under that rule, attorneys may not divulge their clients’ secrets, nor may others force them to. The purpose of the privilege is to encourage clients to openly share information with their lawyers and to let lawyers provide effective representation.

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The attorney–client privilege is a legal rule, and one of the oldest recognized privileges for confidential communications. The United States Supreme Court has stated that by assuring confidentiality, this privilege encourages clients to make “full and frank” disclosures to their attorneys, who are then better able to provide candid advice and effective representation. Under this rule, attorneys may not divulge their clients’ secrets, nor may others force them to.

Attorney’s professional capacity

Generally, the attorney-client privilege applies when: a client communicates with an attorney on a legal matter, and the lawyer is acting in a professional capacity (rather than as a friend), and the client intends and understands that the information given is given and will remain private and the attorney will act accordingly.

Attorneys are obligated not to disclose oral or written communications with clients that clients expect to remain private. An attorney who has such confidential information cannot repeat them to anyone outside the legal team without the client’s consent. In essence, the privilege of confidentiality is the client’s, not the attorneys. Only the client can decide to waive the confidential privilege. The attorney cannot.

Privilege remains after attorney-client relations end

The attorney-client privilege generally stays in effect even after the attorney-client relationship ends, and even after the client dies. Under this rule, an attorney can never divulge the client’s confidence or secrets without the client’s permission, unless some kind of extraordinary exception.

Attorneys are duty bound

In a legal case, the attorney-client privilege gives attorneys the right not to testifying, or be forced to testify, about information provided by their clients. Under the rule every attorney is duty bound to their client by confidentiality. This duty of confidentiality prevents attorneys from discussing any aspect of a client’s case with anyone, except with the client’s permission. In fact, the attorney must keep private almost all information related to representation of the client, even if that information didn’t come from the client.

The attorney-client privilege is so strong that even if someone clandestinely record a private conversation between an attorney and his client while that clients is providing with information related to a case in which the attorney is contracted to represent that client, that recording would be rejected in court, as ‘inadmissible’ evidence.

There are and will be occasions when someone with a legal problem provides confidential information to an attorney, but for whatsoever reason decides not to retain that attorney to solve that legal problem. Even in such a situation, the attorney, although he was not retained is nonetheless bound to adhere to the attorney-client privilege rule and not reveal or disclose the information revealed by the client.

Attorney can be disbarred

An attorney who publicly discloses a client’s confidentiality can be reprimanded by the bar and/or disbarred, even if that attorney no longer represents the client.

 It must be emphasized that no one with a legal issue should disclose any information to an attorney in public place where the information is likely to be overheard by third parties. It would be unprofessional for an attorney to take such information in a public place. If such information is unwisely related to an attorney in public and t s overheard, the person or person who overheard the information will be allowed to testify in a court of law.  It is the responsibility of an attorney to assure the client that their conversation is being made in strict confidence.

Client’s responsibility

It should also be explained that the client has a responsibility to adhere strictly to the attorney-client privilege. The client can forfeit the privilege if he divulges the confidential conversation held with the attorney with other parties. But, even if the client, wittingly, or unwittingly, divulge the information, the attorney must still uphold the attorney-client privilege and not disclose the information.    

General exceptions

There are general exceptions to the attorney-client when the information was related to an attorney for the purpose of committing a future crime, or the client deliberately waived the privilege by publicly disclosing the information.

There are specific legal cases such as those involving the probate of a last will and testament where the attorney client privilege will be exempted. In such cases with the client deceased it may be necessary for the attorney to disclose previous confidential attorney-client information and conversations to explain the deceased various bequests to his/her beneficiaries including those who may be questioned because they were not members of the deceased immediate family.

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