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What the Attorney-Client Privilege Really Means

By Butler Prather LLP on November 18, 2020

Most people have heard of the term attorney-client privilege. This phrase is often thrown around on TV shows and in movies as a means to remind law enforcement officials that attorney does not have to discuss what their client says with them. Here, we want to discuss well attorney-client privilege means when it comes to preserving the confidentiality of communication between a lawyer and their client. This rule is important to understand if you are considering working with an attorney for any type of case, whether it be for a personal injury matter or a criminal defense issue.

Defining attorney-client privilege

Attorney-client privilege is the rule that preserves the confidentiality of communication between attorneys and their clients.

The attorney-client privilege has been established for hundreds of years and has always been recognized by Anglo-American jurisprudence. As this privilege has evolved over the centuries, the rule revolves around the basic idea that any person who seeks advice or assistance from a lawyer should be free from any fear that their secrets or personal information will be uncovered by others or divulged by the attorney.

The underlying principle of attorney-client privilege is to provide a client with sound legal advice and advocacy. With the security of attorney-client privilege, the client is able to speak frankly and openly to their attorney and disclose all relevant information necessary for the case. This privilege allows a client to be more willing to communicate things that they would otherwise suppress.

With attorney-client privilege, the attorney can never be compelled to disclose matters conveyed to them in confidence by their client during the course of the client seeking legal counsel. The attorney can also not voluntarily disclose this information. Likewise, the client will not be compelled to testify regarding matters they communicated to their lawyer while they were seeking legal counsel.

What constitutes an attorney-client relationship?

In order for an attorney-client privilege to exist, there must actually be an attorney-client relationship. As simple as this concept may seem, many clients assume that a relationship has been established with an attorney before one actually exists. Thus, they may end up divulging information that the attorney can then relate to other parties.

In a vast majority of cases, determining when an attorney-client relationship is established is not difficult. Typically, this occurs when an attorney has expressly acknowledged their representation of the client. This acknowledgment may be demonstrated in an:

  • Engagement letter
  • A fee contract
  • An oral agreement about the scope of the arrangement
  • An appearance of the attorney on behalf of the client

Attorney-client privilege typically applies when:

  • An actual or potential client communicates with their attorney regarding legal advice
  • The attorney is acting in their professional capacity at the time of the communication
  • The client intends the communication to be private and acted accordingly

While it may be relatively easy to show that there is a relationship between an attorney and a client, we bring this up to let you, as a potential client, know that simply talking to an attorney you may know does not necessarily establish an attorney-client relationship. If your brother’s friend’s niece is an attorney and you discuss your legal matter with that person at a gathering, this is not going to establish an attorney-client relationship. Anything you say in that conversation with them will likely not be protected by the attorney-client privilege.

Posted in: Personal Injury

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