The concept of attorney-client privilege is a somewhat complex and confusing privilege to understand. The privilege was created to protect the attorney and not the client. It originally was put into place so it would protect the attorney from testifying against his /her client, who would discredit his/her, loyalty. Today, instead of the privilege being held by the lawyer, the client holds the privilege (Silverman, 1997).
The attorney-client privilege is protected only if it meets five requirements:
There must be communication (oral, written, nonverbal) between an attorney and client;
The communication must be conducted in confidence or privately;
Communication must pertain solely to legal advice;
Communication must be made with the impression that it will be held confidential and;
The client must not waive his/her right to the privilege (Daniels, 2005).
The communication between a lawyer and his/her client can be in any medium. This means all communication such as oral, written, electronic, and gestures are all protected under this privilege. Also, the communication can be extended to the attorney’s paralegal and still have the privilege be enforced (Daniels, 2005).
When communication ceases to be made in confidence or privately, the information exchanged is subjected to testimony via third party testimony. For example, if someone where to be standing in line at the bank with his/her attorney and they were discussing some matters pertinent to the case; anything said would be subjected to testimony. In these cases, the privilege will not be extended. Also, if the client has anyone else present, such as his/her spouse, that information being discussed would not be protected under attorney-client privilege (Daniels, 2005). The best way to make sure this privilege applies all communication between an attorney and the client should only happen behind closed doors and without any other personnel listening in.
The third exception to this privilege would be any communication that does not focus on legal advice. For example, if an attorney is acting as an accountant or psychologist, the communication that is conducted when the attorney is not in a legal position is admissible to the court and will not be protected by the attorney-client privilege (Daniels, 2005). Another way that an exception to the privilege would occur if the attorney is allowing furtherance of criminal activity or participating in criminal activity (Attorney, 2005). If any of these actions are present at anytime, the privilege will not be granted in a court of law.
The fourth exception to this privilege would be the understanding of the information exchanged between the attorney and the client would be held in confidence. Since attorneys have an ethical obligation under Code of Professional Responsibility to hold all information in confidence, any information an attorney and client discuss must not be volunteered by the attorney (Daniels, 2005). The only way a lawyer may volunteer such information is if it is related to crime prevention or if s/he is representing multiple clients within a case (Daniels, 2005). If any information is volunteered by the attorney or the client, the privilege will not be extended under normal circumstances.
The final exception to the privilege would be the waiver of the privilege. Only the client can waive the privilege (Legal Match, 2005). There need not be a hearing or petition to waive the privilege, in fact, waiving the privilege is fairly easy and the individual may not realize s/he is giving up the right (Legal Match, 2005). An example of waiving the right without knowing would be discussing the matter with an attorney and then discussing the same information with another third party such as a coworker or spouse (Legal Match, 2005). Also, another way this privilege may be waived is if the matter is being discussed in the presence of the attorney’s employees who do not have a “need to know” (Daniels, 2005). If situations fit this criterion it is almost certain the privilege will not be extended to information which has been discussed.
In conclusion, there is a need to understand the attorney-client privilege, especially when dealing with criminal cases. In cases in which conversations took place between a client and the attorney which were unrelated to the case, the attorney-client privilege would not hold up in a court of law because the conversation between the suspect and the attorney was not related to legal advice. If the attorney was furthering his/her client’s criminal activities the attorney client privilege would not stand.
References
Attorney. Attorney/client privilege. Retrieved 24 November 2005 from
http://en.wikipedia.org/wiki/Attorney/client_privilege .
Daniels, L.M. How secret is what you tell your attorney? Retrieved 28 November
2005 from
http://www.d2vlaw.com/articles/LTW.attorney-client%20privilege.pdf.
Legal Match. What is attorney-client privilege? Retrieved 28 November 2005 from
http://www.legalmatch.com/law-library/article/what-is-attorney-client-privilege.html .
Silverman, A.B. (1997). Silence is golden- the attorney-client privilege. Retrieved
28 November 2005 from http://www.tms.org/pubs/journals/JOM/matters/matters-9706.html .
