Breaking Down Attorney-Client Privilege: What it Means and How it Can Affect Your Case

People generally expect that their conversations with an attorney will remain a secret. After all, you need the ability to be honest and transparent with your attorney. If you cannot communicate honestly with your attorney, this could hinder their representation. The attorney-client privilege helps protect these communications.

The attorney-client privilege has existed for hundreds of years. It is one of the oldest privileges recognized in today’s legal system. But, there are some nuances that can make this privilege a little tricky. Knowing the basics of this privilege can help you when talking to a personal injury attorney in Columbus.

What Is the Attorney-Client Privilege?

The attorney-client privilege exists between a client and their attorney. It protects confidential communications about the attorney’s representation of the client. The purpose of the privilege is to help protect the client. 

Having this privilege allows them to share information without fear of disclosure. Their attorney is then able to put together the best representation strategy.

The attorney-client privilege prevents the attorney from disclosing the client’s confidential information. Similarly, the client cannot be forced to disclose this information. But remember that courts often need the disclosure of information. For this reason, the rules surrounding attorney-client privilege are narrowly focused.

When Does the Attorney-Client Privilege Begin?

Before the attorney-client privilege can begin, an attorney-client relationship must first exist. Some clients make the mistake of sharing information before an attorney-client relationship starts. This relationship usually begins when both parties agree to it.

In most cases, there is a clear representation agreement in place. This could be a fee agreement, client contract, or even an oral affirmation. The relationship may also begin when an attorney makes an appearance in court for the client. But, a simple consultation does not always create an attorney-client relationship.

There are generally three elements that determine when lawyer-client confidentiality arises. 

Those requirements are as follows:

  • Legal advice is sought by the client and provided by the lawyer
  • The communication is made in confidence and protected from disclosure by both parties
  • The client has not waived the protection of the confidential information

It is not always easy to determine which communications are protected. In some cases, an attorney-client relationship may exist as an implied relationship. A consultation can sometimes turn into the requisite relationship. This usually happens when the client requests legal advice and then receives it.

The Basics of Privileged Communications

You should understand that not every communication with an attorney is confidential. Information available from other public or third-party sources is not confidential. For example, a client may communicate publicly available information to the attorney. In that case, the communication is not confidential.

A client cannot expect all information shared with their attorney to remain confidential. Only communications taking place about the representation of the client have protection.

Attorney-client privilege exists in all types of representation, both civil and criminal. 

Some examples of the types of cases where it applies are as follows:

Communication is also not limited to verbal or written communication. Certain actions or inactions may be types of communication. Even a silent head nod could be a type of communication.

Exceptions to the Attorney-Client Privilege

There are a few attorney-client privilege exceptions that sometimes apply. These exceptions are generally in place as a matter of public policy. 

Some common examples include when the attorney concludes it is necessary:

  • To prevent reasonably certain death or physical harm
  • To follow another law or court order
  • To prevent financial injury resulting from the client’s commission of a crime or fraud
  • To get legal advice for the attorney 
  • To put forward a claim or defense to a dispute arising between the attorney and the client

There are a few other circumstances that may also apply. Likewise, not all information relating to the representation of a client is confidential.

The existence of the attorney-client relationship, for example, is not always confidential. The fact that a client met with an attorney is not confidential. 

You may sometimes be unsure whether the information you are providing will remain confidential. In those cases, be sure to discuss with your attorney before the disclosure. You can also contact the state bar with questions about this privilege.

Waiving or Negating the Attorney-Client Privilege

The attorney-client privilege exists for the benefit of the client. Thus, the client may choose to waive this privilege. They can give the attorney permission to disclose otherwise confidential information.

In some cases, the client may inadvertently waive their attorney-client privilege. One way they can do this is by sharing the information with someone other than their attorney. 

Some ways this can happen include the following examples:

  • Having a conversation with their attorney while a third party was present
  • Sending your attorney an email and copying a third-party
  • Discussing confidential information over the phone while others are listening

Third parties may include your friends, family, or others. Sharing confidential information with a family member could make it discoverable. Yet, you are generally free to share the information with your attorney’s staff.

How the Attorney-Client Privilege May Affect Your Case

Remember that the attorney-client privilege exists to protect you. Its purpose is to encourage open communication between a client and their attorney. A client should be able to share confidential information with their attorney. They should not have to fear that it will be shared with others.

If you need to share confidential information with an attorney, follow these tips. Make sure that you both agree that an attorney-client relationship exists. Also, make sure the information you share does not fall under one of the exceptions to the privilege. 

Finally, let your attorney know before sharing the information. This allows them to take reasonable steps to protect the privilege.

Contact the Personal Injury Law Firm of Mani Ellis & Layne Accident & Injury Lawyers for Help Today

For more information, please contact an experienced lawyer at Mani Ellis & Layne Accident & Injury Lawyers to schedule a free initial consultation today. We have convenient locations in Columbus, OH, and Charleston, WV.

Mani Ellis & Layne Accident & Injury Lawyers – Columbus, OH Office
20 E Broad St Suite 1000, Columbus, OH 43215
(614) 587-8423

Mani Ellis & Layne Accident & Injury Lawyers – Charleston, WV Office
10 Hale St Suite 501, Charleston, WV 25301
(304) 720-1000