What is Lawyer-Client Privilege?

Attorney-Client privilege is a legal doctrine that prevents attorneys from disclosing communications (written, oral, and electronic) between a client and their lawyer.  The protections of the attorney-client privilege prevent a lawyer from being compelled to disclose information obtained from the client in the course of representation.  

This doctrine is important because it allows clients to be fully honest with their attorney, ensuring that the attorney is informed of all relevant information and circumstances without the client fearing that this information will be obtained from their attorney and used against them in court.

When is Attorney-Client Privilege Created?

Attorney-Client privilege is triggered once an attorney is retained or appointed to represent a client.  Initial consultations for the purpose of seeking legal counsel may also be protected, but there are more exceptions to this than to actual representation.  

The Attorney-Client privilege lasts beyond the Attorney-Client relationship and generally extends until the client's death, meaning that even after the representation is concluded, the attorney cannot be compelled to disclose confidential information from the client.

What is Protected?

Attorney-Client privilege protects all oral, written, and electronic communications between an attorney and their client that convey legal information.

It is important to note that the attorney-client privilege applies only to attorneys; a client cannot refuse to testify in court about facts they communicated to their attorney.  

This means that a person cannot tell their attorney information that is material to a case, and then refuse to testify about it if asked by opposing counsel by claiming the attorney-client privilege. (Ex. A client meets with their attorney and tells them that they signed a contract on a specific date and paid a certain amount of money as performance in that contract, and then the client is placed under oath in a court proceeding and asked about the contract.  

The client cannot refuse to testify about the signing of the contract or the other details just because they spoke with their attorney regarding the contract.)  The Attorney-Client privilege protects only the communication between the attorney and the client, not the facts of the matter.  Additionally, the privilege applies only to communications, not to documents or other forms of evidence.  

This means that someone cannot provide their financial documents to their attorney in a divorce proceeding and then claim the attorney-client privilege to prevent the opposing party from gaining access to their finances.

What is not Protected:

Attorney-Client privilege is just as it sounds, a privilege that can only be asserted between an attorney and their client.  Any communications between the attorney and the client that occur while a third party is present are not protected under the attorney-client privilege.  If the client were to relay information that they told their attorney to another person, that information would no longer be protected.

Exceptions:

There are a few instances in which the attorney-client privilege does not apply or can be waived.

Failure to Assert Privilege: If the opposing party requests documents or communications protected by the attorney-client privilege, the client (usually through their attorney) must actively assert the privilege and resist the request by asserting that the information is privileged.  If the objection is not raised, then the information becomes discoverable, and the attorney-client privilege is waived as to that communication.

Waiver of the Privilege: the client can choose to waive the attorney-client privilege or have it waived involuntarily.  As mentioned above, any information that would normally be privileged that is communicated or relayed by the client to a third party loses its protection.

Joint Client Representation: When an attorney has represented two or more clients jointly (e.g., representing multiple members of a corporation), none of the parties can claim attorney-client privilege for the communications from that joint representation if they end up going against each other in court at a later date.

Crime-Fraud Exception: if a client provides an attorney with information about an ongoing crime or future plans to commit criminal or fraudulent activity for the purposes of concealing said activity, that information is not protected, and the attorney may be required to disclose that information to the authorities to prevent harm to another person.

Overall, the attorney-client privilege seems simple, but it is a complex doctrine with multiple exceptions.  If you have questions regarding whether information is privileged, consult with your attorney before disclosing it to anyone, and ensure that your communications with your attorney remain private.

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