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What Is the Attorney-Client Privilege?

Posted on January 14, 2022 Personal Injury
When you retain an attorney, you become protected by something known as the attorney-client privilege. This is a legal principle that applies to both criminal and civil cases. In simple terms, it is a guarantee that what you say to your attorney remains confidential – it stays only between the two of you. Attorney-client privilege encourages clients to openly share information with their attorneys without fear of it getting back to opposing counsel, allowing the attorney to provide effective legal representation.

How Does the Attorney-Client Privilege Work?

Attorney-client privilege automatically applies when an attorney is communicating with a client or potential client. This includes during free case evaluations, in most cases. In general, the individual must be speaking to a lawyer for the purpose of obtaining legal advice for attorney-client privilege to apply. Speaking to someone who happens to be an attorney at a cocktail party, for example, would not create attorney-client privilege. The attorney-client privilege applies to conversations with personal injury lawyers, criminal defense lawyers, employment lawyers and all other types of attorneys. The communication in question must be kept only between the client and the attorney, however; no third parties may overhear the conversation, or else the attorney can no longer guarantee attorney-client privilege. This is because the confidentiality between the two parties has been broken by the third party. When kept only between the client and the attorney, all types of communication are confidential under attorney-client privilege. This includes text messages, emails, letters, voicemails and verbal communication. After a client agrees to work with an attorney – he or she “retains” the lawyer and signs a contract – all information passed between them is safeguarded by the attorney-client privilege. The attorney-client privilege is typically stated in plain terms in the attorney’s contract, but it may also be created by oral agreement. Even without a written or oral agreement, however, the attorney-client privilege can exist any time a client talks to a lawyer for the purpose of obtaining legal advice with the assumption that it is in confidence.

How Is Attorney-Client Privilege Used?

Attorney-client privilege works by preventing the attorney from diverging information against his or her client. When the opposing party in a case is trying to learn more about the subject at hand, such as during the discovery phase of a personal injury lawsuit, the attorney-client privilege prevents the defense lawyer from questioning the plaintiff’s attorney. Any privileged information between the attorney and his or her client is not discoverable. This makes it possible for a client to speak freely and openly with his or her attorney without fear of the information being given to the opposing side. Likewise, if questioned about what a client said to his or her lawyer, the client cannot legally be compelled to answer. A client cannot be forced to testify regarding private matters communicated to his or her attorney in confidence. If the client wishes, however, he or she can waive the attorney-client privilege. It is the client’s privilege, not the attorney’s. This means the client has the right to waive the privilege if desired, but an attorney cannot. This is generally only done when the client wishes to have a third party present.

Are There Exceptions to Attorney-Client Privilege?

Attorney-client privilege is not without exception. There are circumstances where an attorney is ethically compelled to disclose information given to him or her by a client to the appropriate authorities. For example, if a client admits plans to commit a crime that has not yet been committed, this information may have to be given to the authorities. Admitting an intention to commit fraud during the current claim is also an exception to the rule. In addition, the specific laws regarding attorney-client privileges can differ from state to state. The best way to understand this privilege in your personal injury case is by asking your attorney.