Attorney-Client Privilege and How It Works

image of attorney sitting at a desk speaking with a client

Attorney-client privileged communication is evolving. This is exemplified by the fact that approximately 48% of attorneys reported using video conferencing tools in 2020. With this in mind, it’s important to understand the difference between protected and unprotected conversations. Without making the distinction, you could face serious legal problems. 

In this article, we discuss the attorney-client privilege definition. We also review the most common attorney-client privilege exceptions. Continue reading if you want to protect yourself and your legal case. 

What Is Attorney-Client Privilege?

What is the attorney-client privilege definition? To understand this, you must first understand its status within the legal community. It’s one of the oldest privileges in our legal system. It’s also one of the most respected. 

Attorney-client privilege helps establish trust between an attorney and their client. It’s more than the client’s ability to discuss the details of their case. It’s their ability to do so without fear of the information being shared with others.

Waiving Attorney-Client Privilege

An attorney is bound by lawyer-client privilege at all times. This applies even if the information is incriminating.

They can only share it with other attorneys within the firm. Otherwise, they need their client’s permission to share the information. 

It also doesn’t have an expiration date. An attorney is always bound to protect information. This applies even if their services are no longer retained.

The client can waive this privilege at any time and in any situation, but the attorney does not.

Attorney-Client Privileged Communication

Attorney-client privileged communication applies to several different mediums. However, not all forms of correspondence are protected in the same way. For this reason, it’s important to understand the best ways to communicate with your attorney.

We recommend discussing communication preferences upfront when hiring an attorney. This can help avoid confusion and unintentional self-incrimination. 

Written Correspondence

Written correspondence is no longer a common source of attorney-client privilege communication. Letters and packages are lost in the mail every day. So, you should never put incriminating information in a mailed letter.

If you do need to send sensitive information via the mail, we recommend sending it via certified mail. This helps ensure it goes from your hands to your lawyer’s hands and remains privileged. 

Digital Correspondence

Digital correspondence is a popular communication medium among attorneys. Emails, text, and attorney-client communication portals are useful tools to keep conversations streamlined. 

However, whenever contacting an attorney, you should be sure you’re using a secure email or phone number. Sending an email from a monitored work system is not as secure as sending it from a private email. 

Verbal Correspondence

Private in-person conversations are the best way to communicate without having to worry about a breach of attorney-client privilege. This is partly due to a lack of a physical record of the conversation, so it stays private.

However, be sure you can’t be overheard such as on a phone line or in a public space. This makes it harder to maintain a private conversation. 

Attorney-Client Privilege Exceptions

The ability to build trust with a client is respected and protected in the legal community. However, it’s important to be aware of attorney-client privilege exceptions. Not everything you say to an attorney qualifies as privileged information.

Being able to tell the difference can help protect you. It protects you from self-incrimination and from having to navigate the breach of attorney-client privilege.

No Attorney-Client Relationship

Let’s say your friend or family member is a lawyer. This doesn’t mean they have a responsibility to protect your secrets. Getting legal advice under an informal relationship isn’t protected by the attorney-client privilege.

A conversation is only privileged in two situations. A person has to be either a potential client or a formal client of an attorney. If the information is shared outside of these two contexts, it is not protected.

If you’re unclear as to whether a conversation is or will be attorney-client privileged communication, you should inquire about it before sharing sensitive information. 

Doesn’t Pertain to Legal Advice

Just as not every conversation is privileged, neither is all information privileged. Only information regarding a person’s legal case is privileged. This includes legal advice, details of the event, and developments in the case.

Even if you are a client of an attorney, you cannot share other sensitive information. You cannot expect protection of information that is not pertinent to your legal case. 

Crime-Fraud Exception

An attorney cannot keep your secret if you divulge your intention to commit a crime. This means that if the attorney learns that their client intends to take part in a crime, they can alert the authorities to these actions.

This includes destroying evidence, covering up a crime, and lying on the stand (perjury). This doesn’t apply to criminal cases only. If a client intends to commit fraud or other civil wrongs, the attorney can share this with authorities as well. 

Unreasonable Expectation of Privacy

To protect your privacy, you have to have a reasonable expectation of privacy. For example, you cannot expect that a conversation in a crowded plaza is private. It won’t have the same level of privacy as an attorney’s office.

You should only divulge sensitive information if you’re in a private location. Otherwise, you should wait until you are sure. This includes the place you communicate as well as the manner with which you communicate. 

Breach of Attorney-Client Privilege

If a breach of attorney-client privilege occurs, the client has the right to sue for legal malpractice. Unless one of the above exceptions occurs. Yet, breached confidentiality is nearly impossible to undo. 

Understanding Attorney-Client Privilege

Understanding attorney-client privilege is essential in ensuring your protection in a legal case. This includes attorney-client privilege exceptions. Talk with your lawyer beforehand if you aren’t sure whether a conversation is privileged.

If you want to ensure maximum privacy during your legal case, sign-up for our secure, real-time communication platform