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Attorney-Client Privilege

Kevin Hickey

During the first consultation, clients can be reluctant to divulge all details concerning their case. This is typically due to the fact that they don’t fully understand the attorney-client privilege. As soon as someone hires an attorney, an attorney-client relationship is formed, thus creating a privilege. The relationship comes into existence either expressly or implied. An express relationship is created when the attorney and client have come into a formal agreement from the execution of a written agreement. An implied relationship is formed when the client reasonably believes that the attorney is providing legal representation, even if there is no written contract. Initially, an attorney might be reluctant to answer a question in an informal setting, because he or she is trying to avoid creating an informal relationship.

The privilege is designed to give clients the ability to be frank, open and uninhibited with their attorneys. This allows the attorney to fully meet their legal needs and competently address the case by being fully prepared. Lawyers are not allowed to reveal any oral or written communication with clients that is reasonably expected by the client to remain private. It prevents lawyers from testifying about information that a client has divulged to him or her. This also protects the client and attorney in that they cannot be forced to testify about their client’s statements. The information cannot be repeated to anyone outside the legal team without the client’s consent. Therefore, the privilege is the client’s, not the attorney’s meaning the client can decide to waive the privilege, but the attorney cannot.

You can rest assured that the attorney-client privilege extends beyond just the immediate attorney-client relationship. The privilege includes an attorney’s partners, associates, office staff such as secretaries, file clerks, messengers, law clerks, anyone that works in the attorney’s office in the ordinary course of their normal duties. Additionally, the attorney-client privilege generally stays in effect even after the attorney-client relationship ends even after the death of the client.

Attorneys also owe their clients a duty of confidentiality. This prevents attorneys from informally discussing information related to their clients’ cases with others.

As with most things when dealing with the law, there are a few exceptions. One such example is the crime-fraud exception. This exception says that the information a client relays to her attorney isn’t privileged if it was made with the intention of committing or covering up a crime or fraud. As stated above, the privilege belongs to the client, but most courts will apply any exceptions even if the attorney had no knowledge of, and didn’t participate in, the actual crime or fraud. The crime-fraud exception applies if:

  • The client was in the process of committing or intended to commit a crime or fraudulent act; and
  • The client communicated with the lawyer with intent to further the crime or fraud or to cover it up.

A few situations ethically require lawyers to disclose communications. This is referred to as a duty to the courts.  Here are a few examples:

  • If an attorney knows a witness is about to give or has given perjured testimony, he or she must inform the court. This can present a difficult dilemma for an attorney if his or her client stubbornly insists on offering perjured testimony. The attorney has to consider the attorney-client privilege as well as the duty to the courts. A lawyer will often ask to be relieved of the case, without saying why.
  • If a client gives the attorney a crucial piece of evidence to a case, the attorney may have to turn it over.
  • If a client tells the attorney the location of a missing witness or victim whose life is in danger, the attorney may have to disclose it.
  • If a client threatens to harm someone such as a witness, the attorney may have to report the threat.
  • If the client has revealed information that an attorney can use to prevent the death or serious injury of a person, he or she may have to disclose it.

Kevin Hickey Law Partners can handle all of your family law needs. In addition to our many years of experience, we have received several awards for our work. We have received a Superb rating, Client’s Choice and Top Attorney awards from Avvo. Avvo is a rating system intended to reflect the type of information people have identified as important when looking to hire an attorney. When you hire Kevin Hickey you can rest assured that I will represent you to the best of my ability. Give me a call today.