The attorney-client privilege rule is a cornerstone of the American legal system. The privilege works to prevent attorneys from testifying against their clients, and it allows clients to have open and honest conversations with their attorneys without fear of reprisal.
However, the statute doesn’t always protect all communications, so understanding attorney-client privilege rules can be crucial before meeting with a practicing lawyer. After all, you don’t want to spill your secrets only to learn the attorney is being called to testify against you in court.
What is Attorney-Client Privilege
At first glance, attorney-client privilege seems relatively easy to understand. The rule protects your communications with your attorney and vice-versa. The legal advice your attorney provides is also considered privileged. These communications include verbal discussions, text messages, emails, faxes, etc.
So, it can seem like anything you share with an attorney is protected by the rule. However, there are exceptions. You also need to meet the four key elements of attorney-client privilege. If you can’t meet these elements, there’s a good chance your communications don’t fall under attorney-client privilege guidelines.
The four elements are:
- Communication, which refers to a discussion, tax, text, etc.
- Communicating with a privileged individual, which refers to your attorney. Your attorney is considered the privileged individual.
- Communicating in confidence, so there must be a reasonable expectation of privacy.
- The communication must be to obtain or provide legal assistance.
If your discussions with an attorney meet these four elements, there’s a good chance your communications fall under the rule’s protection. Here’s a closer look at the four elements of attorney-client privilege.
What Qualifies as a Communication
Even though most written and verbal communications with your attorney are privileged the rule doesn’t apply to every word or scrap of paper you exchange with your lawyer.
For example, if you send your attorney an email containing a published public document, the privilege doesn’t apply—and the reason is actually fairly simple.
You can’t expect to keep a public document private, especially when a quick online search brings up the information.
This can also be true for file notes, even ones written in your private communications. However, you may still be able to protect file notes and other types of memoranda under the work product privilege rule.
The work product privilege rule protects certain documents from discovery by opposing counsel, as long as the work is done in anticipation of or for an upcoming trial. This doctrine can also apply to your attorney’s random notes jotted down for potential use in your case.
Did You Communicate with a Privileged Individual
Simply because you’re having a conversation with a practicing attorney doesn’t automatically mean the discussion is protected. Attorneys are privileged individuals but only for their clients. In other words, if you ask a random attorney for legal advice while waiting in line, the communication doesn’t necessarily meet all of the elements of privilege.
For the privilege to apply, there must either be a relationship between the attorney and client or at least an implied one. Asking a stranger for legal advice doesn’t imply a relationship.
Is the Communication Confidential
Sometimes, it’s easy to know if your communications with your attorney meet the confidentiality requirements. If your conversations with your attorney happen behind closed doors and no one else is present, you have a reasonable expectation of confidentiality.
The guidelines for this element of attorney-client privilege are fairly straightforward:
- You’re disclosing information to an individual with the expectation of receiving legal services
- The information must be disclosed to aid your attorney in their legal duties. An example is disclosing potentially harmful information that an attorney should know so they can mount an effective legal defense.
Along with meeting these two guidelines, the location of the communications also affects confidentiality. Any discussions overheard by a third party usually aren’t covered by attorney-client privilege. An exception is if the client’s spouse is present for the discussions.
In this instance, spousal privilege typically applies. If you’re not familiar with spousal privilege, the rule protects conversations between legal spouses. Yes, this can include common-law spouses as long as their union is recognized by the government.
Another exception to the third-party rule is legal aides, associates, and assistants. If your attorney brings in other legal personnel to work on your case, the attorney-client privilege rule still applies.
Does the Communication Apply to Legal Services
A random comment to an attorney doesn’t meet the rule’s guidelines—attorney-client privilege only applies with the communication seeks legal advice or assistance. In other words, the communication must help the attorney provide legal services.
The legal services aren’t limited to representation in court. In fact, legal services can be anything from assisting a client with a legal document to providing advice on an upcoming divorce. Even though attorney-client privilege is often associated with criminal defense, the rule can apply to all types of legal services.
Some types of communications the courts have upheld as being privileged include:
- Receiving legal advice from an attorney. This applies to communications sent from the client and ones delivered by the attorney. Both sides of the communication are protected under the rule.
- Communications between a business’s employees and an attorney during an accident investigation. The rule protects employees, allowing them to speak freely to an attorney. The attorney can represent either the defendant or plaintiff in the accident case.
- All communications with individuals testifying as experts.
- Drafts of either agreements or documents shared between a client and their attorney. Remember, the rule doesn’t apply to published documents.
There are some common examples of when communications are privileged between an attorney and a client. There are also exceptions to privileged communications, even if all four elements are met.
An example is when a client informs their attorney of their intent to commit a crime. In this instance, the attorney is legally and ethically required to report the communication to the authorities.
Attorney-Client Privilege Works to Protect Your Rights
Attorney-client privilege protects your rights by ensuring you can freely communicate with your lawyer without fearing that your words will be used against you. However, don’t assume the privilege always applies to every discussion with an attorney.
There are exceptions to the rule, so it's important for you to confirm that the privilege applies before disclosing everything to an attorney. Consulting with your attorney about the scope of this privilege can help you understand its limits and ensure your conversations remain protected.
