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Understanding Attorney-Client Privilege: Insights from a Defamation Attorney

Civil Rights and LibertiesLitigationPolitical Law By Binnall Law Group - 2024/04/03 at 10:23am

Introduction to Attorney-Client Privilege

The attorney-client privilege protects the confidentiality of communications between lawyers and their clients. This privilege ensures that attorneys may not divulge client secrets, nor can others force them to do so legally, except if the privilege is waived. The purpose of this expansive privilege is to ensure that clients may openly share information with their lawyers, enabling complete and effective representation.

Key Aspects of Attorney-Client Privilege

When Does Attorney-Client Privilege Attach?

In most jurisdictions, the privilege attaches whenever a client is seeking legal advice from a lawyer. This applies even if a formal attorney-client relationship has not been established through a retainer. Communications seeking legal advice, even from a prospective client, are typically protected.

What Does Attorney-Client Privilege Cover?

Although attorney-client privilege is expansive, not all communications with a lawyer are absolutely protected. Generally, when a communication involves a lawyer and a client (or prospective client) seeking or providing legal advice, it will likely be deemed privileged. However, specific parameters must be met for the privilege to apply.

When Does Attorney-Client Privilege End?

The privilege generally continues from the time of the communication indefinitely unless it is waived. An attorney may not reveal communications that clients reasonably expect to remain private, even after the attorney-client relationship has ended. The privilege belongs to the client, who can decide to waive it, but the attorney cannot.

How Can Attorney-Client Privilege Be Waived?

The privilege is waived only by the client’s affirmative choice or by actions that result in a waiver. If a client decides to waive the privilege, it will not prevent any testimony by the attorney. Otherwise, actions inconsistent with the application of the privilege may result in a waiver.

Exceptions and Limitations

Crime-Fraud Exception

A well-known exception to the privilege is the crime-fraud exception. Clients cannot expect confidentiality when consulting an attorney for future crimes they plan to commit. However, communications about past crimes are generally protected.

Mandatory Disclosure of Potential Harm

Many states require lawyers to divulge information about potential client actions that may result in death or serious injury to prevent these actions.

Public Communications

Attorney-client privilege can be waived if a client discusses confidential matters with their attorney in a public setting or includes non-privileged individuals in the conversation. This can result in a waiver of the communication or, in some jurisdictions, a broader waiver related to the discussed topics.

Legal Malpractice Claims

Bringing a suit against prior counsel for malpractice can also release the attorney from the privilege, as making the attorney adverse to the client can result in a waiver.


Understanding the nuances of attorney-client privilege is essential, especially in defamation cases. The rules and privileges differ between states and federal courts, so it is crucial to consult a defamation attorney to ensure proper adherence to these legal protections. If you have questions about attorney-client privilege or need legal advice, our experienced defamation attorneys at Binnall Law Group are here to help.

For professional legal assistance with defamation and attorney-client privilege issues, contact Binnall Law Group today.