The attorney-client privilege protects communications between lawyers and clients when those communications are part of the lawyer providing legal services. The privilege allows the client to speak honestly with the attorney so the attorney can provide the best legal services. Without the privilege, clients may be unwilling to share critical information with their attorneys.
Although the importance is obvious in criminal cases it can play a tremendous role in family, employment and injury cases. Clients should understand that the privilege only covers the communication of information or advice between the clients and attorneys; the privilege does not protect the information within those communications from being discovered by other parties.
Attorney-client privilege belongs to the client
The attorney-client privilege belongs to the client, not the attorney, so only the client may properly waive the privilege by divulging the communications made to and from the attorney. Attorneys should always take necessary precautions to prevent improperly waiving the privilege on the client’s behalf. There are some limitations to this privilege that allow attorneys to divulge information communicated to them. If a person is not a client of the attorney then privilege does not apply. (Or the potential client is not discussing an issue in which the attorney may accept the client.)
For example, if you came to my office for a divorce consultation, there would be an attorney-client relationship. The privilege would cover the consultation. Additionally, if you came to my law firm to discuss hiring my firm to represent you that conversation would also likely be covered by the privilege. However, if you ran into my office and told me you just killed somebody and I had never met you before, there probably is not a relationship there to preserve privilege.
Attorney-client privilege and the crime-fraud exception
Another limitation to the privilege is what is known as the crime-fraud exception. If a client or potential client tells the attorney he or she intends to engage in future acts of fraud or crime the attorney is free to divulge that information to proper authorities. This generally includes comments that show intent to commit future crimes or fraudulent acts but might also include questions about how to get away with particular crimes or fraudulent acts. This exception does not include prior acts; those are covered by the privilege.
Clients must understand that the privileged information and advice shared between the attorney and client generally includes information that would be detrimental to the client in the hands of opposing parties to a lawsuit (and possibly other parties, such as the police) so the client must also protect that information and advice from falling into the hands of third parties. Communications should be carefully and securely protected. Email, fax and other forms of delivering privileged communications should only be used when properly secured to prevent accidental discovery. Files should be stored as securely as possible.
Waiving privilege
Clients should also be aware of waiving privilege by sharing information with friends, coworkers and even family members. That includes emails, text messages, phone calls, social media and conversations held in public (or even in private). Once information is disclosed to third parties it is no longer privileged. You may be in a position where opposing parties can use the once-privileged information against you.