What is Attorney-Client Privilege?

By: Shawn Flynn

The attorney-client privilege protects the confidentiality of communications between lawyers and their clients. Under this privilege, along with the corresponding ethical rule requiring a lawyer to maintain the confidences of their clients, attorneys may not divulge the secrets of their clients, nor may others force them to do so by any legal means, except if the privilege is waived. The purpose of this expansive privilege is to ensure that clients may openly share information with their lawyers to ensure that the lawyer is not hampered in representing the client and their interests as fully and completely as possible.  

The main questions surrounding attorney-client privilege are: (1) when does the privilege attach, (2) what does the privilege cover, (3) when does the privilege end, and (3) how the privilege can be waived, and what are the effects of such a waiver.  

First, in most jurisdictions, the privilege attaches whenever a client is seeking legal advice from a lawyer. Indeed, it does not even have to be after a formal attorney-client relationship has been formed by a retainer. Rather, the privilege will attach to communications seeking legal advice even when only a prospective client.  

Second, while this is an expansive protection, it is important to note, as will be discussed more below, that not all communications with a lawyer will be absolutely protected. There are specific parameters that must be met in order to have the privilege apply. Generally, when a communication is between a lawyer and client or prospective client and seeking legal advice or providing legal advice, it will be privilege as an attorney-client communication. A communication bearing these hallmarks of the attorney client privilege will likely be deemed to be privileged.  

Third, the privilege generally continues from the time of the communications indefinitely unless it is waived. Indeed, an attorney may not reveal communications with clients that clients reasonably expect to remain private even after the attorney client relationship has ended. According to the rules of confidentiality, an attorney who has received a client’s confidences cannot repeat them to anyone outside the legal team without the client’s consent. This is because the privilege is considered to be the client’s, not the attorney’s—therefore, the client is the one that can decide to forfeit (or waive) the privilege, but the attorney cannot.  

Fourth, the privilege is waived only by the client’s affirmative choice to waive it or by certain actions by the client that result in a waiver. If a client decides to waive the privilege, then it will not prevent any testimony by the attorney. If the client does not affirmative waive the privilege, then only other actions by the client that are inconsistent with the application of the privilege will generally result in a waiver.  

A well-known exception exists for future behavior. Commonly discussed as the crime-fraud exception, a client cannot consult with an attorney for the purposes of a future crime that they plan to commit and expect confidentiality and to prevent the attorney from testifying about the communications. In contrast, communications about past crimes, i.e. crimes that have already been committed, will generally be protected by the privilege.  

In addition to not applying the privilege, many states also require a lawyer to divulge information about potential actions by a client that may result in death or serious injury in order to attempt to prevent these future actions.  

Another common example involves situations where a client acts contrary to the expectation of privacy and engages in a conversation with their attorney that is in a public setting or including persons outside of the privilege. This action generally will be seen as a waiver of at least the communication where it occurred, but, in some jurisdictions, it may effectuate a more general wavier of the attorney client privilege relating to the topics discussed publicly.  

Another way to lose the attorney client privilege is to bring a suit against your prior counsel for malpractice. The act of making the attorney adverse to you can release the attorney from the privilege.  

In addition to these examples, there are other ways that the attorney client privilege can be waived or applied. Like many rules and privileges, the attorney-client privilege differs somewhat from state to state, and between state and federal court. Therefore, it is important to consult an attorney about these issues and make sure that you go over the scope and application of the attorney client privilege and the duty of confidentiality and act accordingly during the representation.