What Are the Limits of the Attorney-Client Privilege?
Posted in General Law Firm on August 6, 2018
The attorney-client relationship is one of the strongest and most confidential professional affiliations. When someone retains an attorney, that attorney enters into a legally-binding agreement in which he or she cannot disclose the client’s secrets or information to others. This agreement is the attorney-client privilege. Confidentiality is key in your relationship with a Nashville personal injury lawyer, so that the client feels he or she can openly share things with the lawyer. Yet not everything a client says falls under this privilege. The attorney-client privilege has the following limits and exceptions.
Basics of the Attorney-Client Privilege
In Tennessee and in most states, the attorney-client privilege rule applies when a potential or actual client receives legal advice from a lawyer, as long as an attorney-client relationship exists and the client intended the communication to be private and confidential. A person cannot expect an attorney-client privilege to exist when asking a lawyer friend for advice at a cocktail party, for example. The lawyer must be acting in a professional capacity at the time of the disclosure.
If attorney-client privilege does exist, the lawyer cannot disclose the client’s secrets to anyone outside of the firm unless the lawyer has the client’s consent to do so. The client has the power to waive the attorney-client privilege, not the attorney. Even after the client stops retaining the attorney or the case ends, the privilege remains in place. In most cases, the privilege stays even after the client dies – unless an exception applies.
The attorney-client privilege is something that belongs to the client, not the attorney. Therefore, it is the client’s intent when speaking to his or her attorney that can determine whether the crime-fraud exception (or other limits to the rule) exists. The crime-fraud exception holds that if the client intended to commit or was in the middle of committing a crime or act of fraud and communicated this intent to the lawyer, the information is not under privilege. In other words, if a lawyer learns that his/her client intends to commit a crime or cover up a crime, the lawyer has the right to disclose this information to authorities.
The prosecution can subpoena the lawyer and force him or her to disclose this information. In standard situations, an attorney does not have to disclose privileged client information even if under oath to tell the whole truth. Future crimes and fraud a lawyer will have the right to disclose can include destroying evidence, tampering with a witness, concealing income, threats to someone, and perjury. This exception can extend past crimes and into civil torts, or wrongs, as well. Most intentional civil wrongs are crimes anyway, such as trespassing and assault.
A client who has yet to commit a civil or criminal wrongdoing cannot disclose this information to a lawyer and expect the attorney-client privilege to keep the lawyer silent. Most states will permit an attorney to break a confidentiality agreement if someone is in danger. If the information has to do with a past crime, it is most likely privileged. The same is true if the client is merely speculating about a possible future intent. It can be difficult, however, for a lawyer to distinguish between musings over a future crime and actual intent.
Other Limits to Know
The law will not enforce attorney-client privilege if the client cannot reasonably expect a communication to be private. For example, sending a letter to a lawyer and disclosing incriminating information is not a type of communication that has guaranteed privacy. Speaking to a lawyer in a public place with other people is another example where the information may get out without consequences to the attorney. Otherwise, a lawyer who breaches the attorney-client privilege could face serious consequences for an ethical violation, such as disbarment and criminal charges.