What are the limitations of attorney-client privilege?

Q:

What are the limitations of attorney-client privilege?

A:

Individuals who have committed a serious crime or who need important legal advice generally will need to hire a lawyer. After they have hired a lawyer, they will also need to share the details of their case to ensure that the lawyer is able to provide them with the best possible legal advice and representation. Concerns, however, may include not only whether the attorney will keep the shared information confidential, but also whether they will be compelled or voluntarily agree to testify against their client in court.

So, what is attorney-client privilege? The concept has been codified in some states, but more generally has been established under common law and is outlined within the judicial decision set forth under United States v. United Shoe Machine Corp. More specifically, attorney-client privilege applies under the following conditions:

  • You are a client of the attorney or you have sought to become a client.
  • You have communicated the information to a member of the bar or their subordinate, and they are acting as a lawyer.
  • The communication relates to information that the lawyer was told by their client.
  • It was not communicated in the presence of strangers.
  • It was communicated to request a legal opinion, legal services or to help with a legal proceeding.
  • It was not obtained for the purpose of committing a crime or tort.
  • The privilege had been claimed and not waived by you (the client).

What does attorney-client privilege really protect?

In an article by Sue Michmerhuizen, titled “Confidentiality, Privilege: A Basic Value in Two Different Applications,” she notes: “The attorney-client privilege only protects the essence of the communications actually had by the client and lawyer and only extends to information given for the purpose of obtaining legal representation. The underlying information is not protected if it is available from another source.”

So, what does this mean? The attorney-client privilege may be used to protect communication when it is made between privileged persons in confidence for the purpose of seeking legal advice or assistance; but, not all facts that are disclosed to a lawyer can be protected because the information itself is not protected, and in some cases, it may be discovered from a non-privileged source.

Exceptions to Attorney-Client Privilege

Above we discussed specific conditions that must exist to maintain or establish attorney-client privilege. There are instances when the conditions may exist, but the court will make an exception.

1. Crime-fraud exception

One of the most common examples of excepting the attorney-client privilege is if the court determines that a client discussed information with the attorney with the specific intent of committing a crime, committing fraud or attempting to hide a crime. Note, in some states, this exception applies for civil torts as well. If the court suspects that any of the above has occurred, the lawyer may be forced to testify about the information provided.

2. Mandatory disclosure

In addition to the crime-fraud exception, there are also times when an attorney is ethically and legally required to contact the court about certain client disclosures. Failure to do so may result in not only sanctions but also criminal charges. Common examples can include disclosure about a missing person or one who is in imminent danger, threats made to officers of the court or information regarding perjured testimony by other witnesses.

3. The privilege is waived by the client

Attorney-client privilege may also be voluntarily waived by the client, since they hold the privilege. It can also be unintentionally waived if there is a careless or inadvertent disclosure, or if the communication is witnessed by a third party (although the presence of the third party generally will prevent the establishment of the privilege).

4. Public policy exceptions

There are also public policy exceptions to the attorney-client privilege. For example, if a client dies, the communications with their lawyer may no longer be privileged if the courts determine that the information is needed to resolve testamentary disputes among heirs. This rule may also apply if there is a fiduciary responsibility to another party, such as a shareholder of a corporation.

5. Exceptions under the Patriot Act

After 9/11, certain exceptions to the attorney-client privilege were enacted, including the Bureau of Prisons Rule. Under this rule, if there was a reasonable suspicion “that a particular inmate may use attorney-client communications to facilitate acts of terrorism,” then these communications between criminal defense attorneys and prisoners were considered not privileged because the review of these communications could “deter future acts that could result in death or serious bodily injury to persons or property.”

Duty of Confidentiality vs. Attorney-Client Privilege

Above we have discussed when the attorney-client privilege exists and when it can be excepted. It’s also important to note, however, that attorneys also have a duty of confidentiality, which will protect their clients from the discussion of elements of their case with others. In fact, the duty of an attorney to protect information relates to all the information related to a client's representation. It’s important to note, however, that under some conditions, the court may have the authority to compel an attorney to share information if a court determines that particular information is not covered by the attorney-client privilege.

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Whether you're facing a legal issue or just seeking information, Justipedia aims to be your most trusted resource for legal information on the Web. With the help of legal professionals across the country, we put the law in plain language to help answer your top legal questions.

Justipedia was founded by Internet veterans Cory Janssen and Mitchell Allen. Janssen founded Investopedia.com and grew it one of the largest investing sites on the Web. Allen is an author, speaker and the founder of LeadRival, the leading provider of pay-per-action advertising in consumer legal services.

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