What Is Attorney-Client Privilege?

The word “privilege” typically refers to a reward or incentive, but it means something different when referring to attorney-client privilege. This applies in both spoken conversation and written communication.

In a legal setting, privilege can refer to a benefit, advantage or immunity, but most often is used in exempting information from becoming common knowledge or being used against the defendant in a case. So a private conversation between an attorney or his/her staff and the client is privileged information – neither client nor attorney can be compelled to release this information. It stays between the two parties and can’t be disclosed without written consent, even to the client’s family members.

The same applies to certain written documentation, like an attorney’s personal notes and correspondence about a case. But most written materials, such as medical records and law enforcement statements, are discoverable, so they must be disclosed.

In addition to attorney-client privilege, information shared between spouses is also privileged provided there was not a third party present and the couple is legally married. So in most cases, a defendant’s spouse can’t be forced to testify about this information in court.

How Does Attorney Client Privilege Work?

When a client hires an attorney, trust must be established. This is particularly when the client is accused, and may be guilty, of a heinous crime like murder or rape. In order for a lawyer to properly defend a client, they need to have all the facts no matter how embarrassing they may be.

This is why attorney-client privilege exists. Only when the client knows they can tell their lawyer the whole story without fear of embarrassment or exposure can they fully trust their lawyer.

Attorney-client privilege isn’t a foreign concept for most people, but it’s important to know the ins and outs of this extremely important legal precedent.

There are three broad instances when this attorney client privilege applies.

  • The client asks the lawyer for legal advice about their case.
  • The lawyer interacts with the client in a professional capacity.
  • The client communicates with their attorney with the intention and expectation of privacy.

This privilege is intended for the benefit of the client and therefore can only be broken by the client. The attorney can not decide to forfeit this privilege, but the client can.

Time has no effect on privilege, meaning it continues after the case is settled and even after the client dies.

Prospective clients are typically covered by privilege, which allows clients to talk with attorneys who may not represent them in the end. There’s a bit of grey area here, clients are encouraged to confirm that privilege is in effect when communicating with prospective lawyers.

Exceptions

As with all rules, there’s an exception to this one. Attorney client privilege does not apply to crimes that will be committed in the future. Meaning clients can’t tell their lawyer that they’re planning to rob a bank and expect the lawyer to keep it quiet. Lawyers are permitted to alert authorities if they have information that could prevent a crime.  

 

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