Battle Born Injury Lawyers | March 31, 2023 | Personal Injury
Attorney-client privilege is a rule of evidence that prevents the legal system from using your confidential attorney-client communications against you or your interests in court. The purpose of this privilege is to encourage you to communicate honestly with your lawyer without fear of negative consequences. The privilege arises from the US Constitution’s Sixth Amendment right to counsel.
Scope of Attorney-Client Privilege
As a law client, you have the right to refuse to disclose any communication covered by attorney-client privilege. You also have the right to prevent anyone else from disclosing the same communications. Even if someone does disclose this information, the government cannot use it as evidence against you.
The information covered by attorney-client privilege includes communications among you, your lawyer, your representative, or your lawyer’s representative for the purpose of rendering professional legal services to you. It includes written materials such as your notes and your attorney’s notes. It even includes conversations overheard by eavesdroppers, as long as you took reasonable precautions to keep the communication private.
The Legal Elements of Attorney-Client Privilege
To qualify for the privilege, the following facts must all be true:
- You must have sought legal advice from a lawyer;
- The lawyer must have been acting in their professional capacity (casual advice at a cocktail party might not count, for example); and
- You must have intended for the communication to be confidential, and you must have acted accordingly.
If all the foregoing elements apply, your communication with your lawyer is privileged communication. Even then, an exception might apply.
Attorney-Client Privilege Exceptions
The following exceptions apply to attorney–client privilege.
The attorney-client privilege is yours to keep or discard. You can waive the attorney-client privilege if it suits your purposes. Your lawyer, however, cannot waive it.
Initial Consultations (Maybe)
Suppose you undergo a free initial consultation with a lawyer. You reveal information about your case to encourage the lawyer to provide feedback, but you ultimately decide not to hire them. Is the information you revealed covered by attorney-client privilege? Court decisions are mixed in this question. To be safe, confirm confidentiality with the lawyer at the beginning of the consultation.
Your Death (Maybe)
In many cases, attorney-client privilege extends beyond the death of the client. In other cases, it doesn’t. Suppose, for example, that you hire a lawyer to write your last will and testament. After you die, a dispute breaks out between your beneficiaries over your intentions regarding ambiguous wording in your will. Your lawyer can probably testify as to your actual intentions with respect to the meaning of that wording.
In rare cases, an attorney might simultaneously represent more than one person in the same case. When that happens, one client cannot use attorney-client privilege to gain an advantage over another client.
Prevention of Imminent Fraud, Bodily Harm, or Death
Your lawyer can ignore attorney-client privilege if you seek legal advice to help you commit a future crime such as:
- Bribing a juror;
- Physically harming someone; or
- Killing someone.
None of this prevents you from insisting on confidentiality if, for example, you confess your guilt to your lawyer for a crime you have already committed.
If your actions indicate you are not trying to keep the information confidential, you cannot rely on attorney-client privilege. This might be relevant if, for example, you are discussing your case with your attorney in a restaurant and you speak loudly enough for other people to overhear you.
Suppose, by contrast, that you are speaking to your lawyer on a prison phone, and the prison has warned you that they monitor all phone conversations. Can you assert attorney-client privilege? Judicial decisions are mixed, so don’t try it.
A Dispute Between You and Your Lawyer
Suppose your lawyer sues you to recover legal fees they say you owe them. You cannot use attorney-client privilege to prevent your lawyer from presenting evidence of the debt in an attempt to win their claim against you.
Corporate counsel represents the corporation. A corporation is a fictional entity, not a real person. As such, corporate counsel does not represent any individual person associated with the corporation, even the CEO. Attorney-client privilege extends only to the extent necessary to protect the corporation itself.
Lawyer-client confidentiality and the attorney work product rule are two standards that many people often confuse with attorney-client privilege.
Lawyer Client Confidentiality
Lawyer-client confidentiality includes all information that attorney-client privilege includes and much more. It prevents your lawyer from revealing information about your case to anyone, no matter where they obtained it (even if they obtained it from a third party in negotiations, for example).
This obligation doesn’t just apply in court—it applies everywhere. It is not a rule of evidence but a professional ethical obligation. Violation could subject your lawyer to various penalties up to and including disbarment.
Narrow exceptions do apply, however. There is an implied consent exception, for example, that allows an attorney to share information about your case with members of their firm unless you specifically forbid it.
The Attorney Work Product Rule
Attorney work product includes documents and other tangible items prepared in anticipation of litigation. Suppose, for example, that your lawyer sends you an email in which they outline their trial strategy. The opposing party cannot simply demand access to this document by asserting that they are relevant evidence. It is your attorney’s work product—why should the other side’s lawyer get to use work that your lawyer worked hard to produce?
The opposing party is not entitled to see your attorney’s work product unless an exception to the work product rule applies.
Hire a Personal Injury Lawyer if You Need One
Attorney-client privilege ultimately exists for your protection. If you have a claim, don’t be afraid to seek the assistance of a lawyer. Even at a free initial consultation, you can always confirm confidentiality in advance with the attorney.
Contact the Las Vegas Personal Injury Attorneys at Battle Born Injury Lawyers Today
If you or a loved one were injured in an accident in Las Vegas and you need legal assistance, contact our personal injury attorneys at Battle Born Injury Lawyers and schedule a free consultation with our legal team.