Attorney-Client Privilege

The attorney-client privilege is the foundation for which confidentiality issues lie in legal matters. It is everything in terms of how a case is handled and how it proceeds.

The idea of this privilege is that the client owns it, to put it simply. This means that only the client may waive the privilege which gives consent to reveal information the attorney has received from the client. But even though the client is the sole holder of this privilege, it is the attorney who must tell the client that such a privilege even exists. This privilege is also only between the attorney and the client and does not include non lawyer personnel or jailhouse lawyers.

The confidential communication covered by this privilege may be written or oral. But it must occur under the existence of legal counsel being sought by the client. This also covers the initial consultation a client seeks from a potential attorney. Even if further counsel is not sought, the privilege remains. Attorney-client privilege even extends beyond the death of a client and will only be waived under those circumstances in very rare cases.

This important privilege does extend to other employees of the attorney or holders of confidential communication. One such person would be the legal assistant or paralegal. Anyone who is working on client matters and has access to the confidential information of the client could be held to the attorney-client privilege.

One concern which is not covered by the privilege is the fee arrangement between the attorney and the client. Only if the details of such an agreement would reveal the identity of a client, would this fall under the guidelines of the privilege.

Physical evidence of a client's crime would also not be covered under the privilege since the attorney would be required ethically to turn such evidence over to prosecutors.   Inadvertent disclosure of the privilege is disputed in some states. If a confidential document is mistakenly given to opposing counsel this may or may not be seen as waiver of the privilege depending on the state and what the circumstances were around the inadvertent disclosure.

Certain exceptions to the privilege do exist. One such exception is when the client questions the attorney's professional competence through criminal charges or a malpractice suit, for example. Also, when an attorney represents two clients who later become adversaries, privileged matters relating to the joint matter are waived as well. Confidential disclosure about a future crime is not protected either as legal counsel is required to reveal such information to enforcement officials.

Attorney-client privilege is a bit more complicated with corporate clients. Since many people can comprise a corporation it must be clear that it is the corporation and not an employee which holds the privilege and thus, only the corporation who may waive the privilege.

Disclosure may also be ordered by the courts. In such a case an attorney must invoke the privilege or appeal the ruling. If the attorney breaks the privilege without client consent or court order, the client can seek to suppress the attorney's testimony or seek to have the case dismissed. The attorney could also be sued for malpractice for invoking the privilege without court order or client consent.

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