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Attorney-client privilege describes the uniquely confidential nature of attorney-client communications when the two parties have formed a business relationship.
In a nutshell, AC privilege means that you can disclose information to your attorney without fear that they will reveal that information in a way that can legally be used against you. This protection is critical to ensure that the business relationship is successful, but as you can imagine, there are exceptions to this rule. Learn more about the specific attorney-client privilege elements that you should know about below.
Key Elements of Attorney-Client Privilege
Confidential communications between an attorney and someone else are not always protected under attorney-client privilege. In order to meet the legal threshold of protected information, the following elements must be met:
- One party was seeking out a form of communication.
- With a privileged person (the party must have hired the attorney).
- With an expectation of communicating in confidence.
- And for the purpose of receiving legal counsel.
In other words, to be protected, the person must have been specifically seeking out legal advice about a situation from someone they have already hired to be their official attorney. Simply seeking out a random attorney’s guidance online or over the phone isn’t enough to be considered privileged communication in most cases.
Attorney-Client Communications Explained
Attorney-client privilege communication is recognized under federal law, and most states have also passed laws regarding client-privileged information. Further, the American Bar Association outlines how lawyers have an ethical duty to keep privileged communication confidential, especially when that information could cause harm to the client.
This communication includes not only things spoken orally between an attorney and their client but also documents, records, and emails as long as they reflect a confident request for specific legal counsel. Physical gestures can be considered confidential communication between an attorney and a client. Electronic communications and sometimes even transferring documents can be considered confidential communications, too.
In general, if you’re not sure if your communication is privileged and you want to ensure it is, then you can invoke the attorney-client privilege protections by affirmatively asserting it verbally or on paper.
Attorney-Client Privilege Exceptions
There are a few attorney-client privilege exceptions where information may not be protected despite occurring between an attorney and their client. For instance, an attorney cannot protect certain facts from disclosure simply because they were communicated to them. It’s very possible for that same information to be gathered from another source by the other party. While communication itself is protected, the underlying information is not.
The main exception for when an attorney-client privilege expires is when the client passes away. Another exception is when the client is attempting to use communication modes with an attorney in order to assist with the furtherance of new crimes or fraud. Communication is also not protected if the client is seeking advice on how to conceal a crime.
Another exception to this rule is when a corporation is attempting to assert client-attorney privilege, but the shareholders of the company want to remove that privilege.
Finally, certain aspects of your communication will not be privileged. For instance, the time and length of a consultation aren’t privileged. The fee arrangement between the two parties isn’t confidential.
Why is Attorney-Client Privilege Important?
Attorney-client privilege is paramount to ensuring the justice system works effectively because if citizens do not feel comfortable enough to seek legal advice, then they aren’t getting fair or quality representation, meaning justice won’t be served.
That said, this privilege isn’t absolute. You need to know what communication is and isn’t protected to utilize your privilege effectively.
Protecting Client Privileged Information
There are a few ways to ensure that your privileged information remains private. To ensure disclosure protection:
1. Make a client request for privileged and confidential communication.
2. Only speak to your lawyer in private settings.
3. Know what communication is and isn’t privileged (you can ask your attorney before disclosing information).
If you have more questions about this privilege, then it might be best to talk directly with our attorney here at Kermani LLP about your concerns.
Glossary References
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