Have you ever been accused of a crime? Have you ever needed to go to court over an issue like divorce or child custody issues? If so, then you know how important it is to have a good relationship with your lawyer.
It’s normal to be nervous about what you say in front of a lawyer, especially if you’ve never hired one before and you’re dealing with a private matter. Learning what attorney-client privilege really means can help you feel confident in your decision to disclose the full truth to your lawyer.
What Is Attorney-Client Privilege?
So, what exactly is attorney-client privilege? When you hire a lawyer to represent you in court, you expect to be able to talk openly and honestly with them. After all, your lawyer needs to know all the relevant facts and details surrounding your case.
The attorney-client privilege allows you to do just that. An attorney is hired to provide you with legal advice, which means the information you provide should be shielded with some form of privacy.
You are permitted to speak openly to your lawyer without fearing that your words will be held against you. That means an attorney-client privilege protects the client. Your lawyer cannot be compelled or voluntarily speak about any matters that you discussed with them in private while seeking legal counsel. This privilege goes both ways, though, because a lawyer wouldn’t be able to provide you with the best advice if they don’t know all the facts.
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Limitations of Attorney-Client Privilege
The attorney-client privilege doesn’t apply in every situation. It will only apply when:
- The person seeking the privilege is seeking to become a client of the lawyer
- The person you’re speaking with is a member of the bar or is acting as a lawyer
- The topic of your communication was given to a lawyer while you were seeking out legal advice or services
- The privilege has been claimed by the client and was not waived
This privilege does remain in effect even after your legal case ends. That means your attorney can’t reveal what you said in confidence after the case is over. Even if you later become deceased, the attorney is still not permitted to disclose your secrets.
An attorney can disclose what you’ve said if you express intent to commit a new crime, though. If someone else is in danger, then your attorney-client privilege will no longer apply. They can also disclose what you’ve said if they’re speaking to you “off the record.” That means if you’re discussing your situation outside of a professional context, then it might not fall under the scope of attorney-client privilege.
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Are My Communications Private?
With the above limitations in mind, you may be wondering — are my communications with my lawyer private? In a nutshell, it depends on the circumstances surrounding your discussion. If you tried to live chat an attorney on their website, then that may not fall under attorney-client privilege. You should always ask about your privilege before you disclose any private information even to your lawyer.
How to Establish Attorney-Client Privilege
With that in mind, how do you establish an attorney-client privilege with your lawyer? To establish it, you need to meet four requirements:
- There was a communication
- The communication was between privileged persons (attorney-client)
- The information was disclosed in private or confidence
- The communication happened for the sole purpose of seeking out legal advice
It’s crucial to establish a relationship with your attorney before you tell them anything important. If you haven’t established a business-client relationship, then the attorney-client privilege hasn’t been established yet, either. Keep that in mind before you discuss your situation over the phone or online with anyone.
That doesn’t mean you need to have a contract between you and your lawyer before you divulge the details of your case. Both parties do need to have reasonable reason to believe a client-attorney relationship exists, though. In other words, you must have hired the attorney or given them reason to believe you are hiring them to create an implied relationship.
What’s Legal Malpractice?
So, what happens when your lawyer breaches your attorney-client privilege? If an attorney makes the mistake of breaching your confidentiality, then they could face significant consequences. A violation of your privacy is also a violation of the ethical rules required of lawyers. Here’s what might happen to a lawyer who breaches your attorney-client privilege:
- Mandatory legal education
- Public reprimand
- Temporary suspension
- Getting disbarred
Depending on your circumstances, you might decide to pursue a civil lawsuit against your lawyer for their negligence. A breach in your attorney-client privilege constitutes legal malpractice.
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If attorney-client privilege is a new concept to you, then you might not know about the other privileges you have available. Depending on your situation, you might also be able to utilize the attorney work product privilege. This privilege will protect your documents from getting disclosed to third parties.
Businesses also get a special privilege called the self-critical analysis privilege. This legal concept allows a business to investigate themselves in light of a problem. This internal investigation can’t be used against them in court.
Another important concept is the joint defense or common interest privilege. This allows two different companies to share information that will be covered under a general attorney-client privilege.
If you have questions about your legal privileges or rights, then it’s a good idea to reach out to a qualified attorney who can help.
Now You Know What Attorney-Client Privilege Really Means
Now, you should have a better idea of what attorney-client privilege really means. In a nutshell, the things you discuss with your attorney can’t be used against you or disclosed by your lawyer. If a lawyer mishandles information, then they could be guilty of legal malpractice.
Are you currently facing a legal situation? It’s natural to feel uneasy about sharing your personal information with a lawyer. Despite that, it’s often necessary when you’ve been accused of a crime or you’re seeking out a civil lawsuit. If you need legal help, then our experts are prepared to assist. Call our office today for a free consultation.