You've heard of attorney-client privilege: The idea that anything you say to a lawyer you're paying has to be kept confidential. But before you go sharing everything with your law firm, you should know exactly how this confidentiality works.
What Does Attorney-Client Privilege Mean?
The idea that you can talk to a lawyer and not worry about your information being used to incriminate you dates back to the Roman Republic more than 2,000 years ago. As the concept is interpreted in U.S. courts today, it means a few specific things:
- There is an established relationship between the lawyer and his or her client. You cannot just talk to any attorney and have the conversation be considered privileged. Usually, paying for legal services or the acknowledgement of the lawyer that you have a relationship constitutes a relationship.
- You are speaking in person. Telephone conversations or email exchanges can be considered privileged, but to be safe, these forms of communication should only be used when there is a previously established relationship.
- You are a real person and not a corporation. There are specific laws that govern how attorneys can work with legal corporations and keep trade secrets or other, similar information.
Once attorney-client privilege is established, the client is the only person who can waive that. The attorney must remain silent in court and cannot testify against his or her client unless this waiver is granted.
When Is Attorney-Client Privilege Not in Effect?
Generally, if there is another person present during conversations between the lawyer and client, the information discussed is not considered privileged. If there is a third party present during a sensitive legal discussion, it's best if you can ask that person to step out of the room when anything that may be incriminating is talked about.
There are some other situations where attorney-client privilege does not have to be maintained -- so be cautious when sharing if any of these may apply:
- Death of the client. This only applies in issues related to wills and probate, for the most part. Some communications remain privileged after death.
- If the client is asking the attorney to commit a crime, or to help with covering up a crime. If the crime has already been committed and the client is asking for legal help with the case, that is privileged.
- If two clients have the same attorney and are battling each other in a lawsuit. Neither person can use attorney-client privilege against the other (and it would probably be difficult for the lawyer as well, which is why many attorneys won't represent two parties in the same case).
Some other restrictions on this apply to communications in the corporate environment that might impact shareholders.
Is Any Information Not Covered By Attorney-Client Privilege?
There are some cases where the information shared by a client with the attorney is not considered to be privileged.
You cannot, for example, hide the fact that you have an attorney-client relationship or how long that relationship has been in place. Most of the time, the legal relationship, what legal services are being provided, and even what the services cost will need to be disclosed.
As well, any facts about the communications, like dates and people in meetings or copied on memos or emails, are open to inquiry.
If you have questions about what is covered by attorney-client privilege, you should ask your lawyer like one from Stuart Simon Law Firm. He or she can let you know what communications are considered privileged by a court.