Attorney-Client Privilege, Historically Speaking

Attorney-client privilege can be traced back to the Roman Empire when attorneys were considered officers of the court. During this time, the interests of the attorney and protecting their honor was a main concern of the justice system. Over time, the focus shifted from protecting the attorney to protecting the interests of the client. In the 18th Century, it became clear that clients needed confidentiality in order to disclose all details, good or bad, of their case to their attorney without worrying about their attorney divulging all details in court.

The United States adopted attorney-client privilege as a fundamental rule of the justice process in the 19th century. The Virginia Supreme Court argued that the public would not receive adequate professional help if they could only reveal some facts, instead of all facts, about a case to an attorney. It was understood, and still is today, that an attorney must know all of the information regarding a case in order to properly help a client, and that information should be protected.

While attorney-client privilege exists to guard the communication between a client and their attorney, not all information is protected, and certain environmental factors affect whether information is privileged or not. Knowing what communication is protected and what isn’t is an important part of any legal case and receiving the outcome you desire.

The Modern Age of Attorney-Client Privilege

Attorney-client privilege protects confidential communications, written or oral, between a lawyer and their client that relate to a client seeking legal advice or services. As stated, this protection not only includes verbal conversation, but also communication that is written in emails, text messages, letters, and other forms of communication.

The central reason that attorney-client privilege is so valued is that it encourages fully honest discourse between clients and their attorneys. Providing clear and direct legal representation knowing that private conversations cannot be used in court allows attorneys to do their job without fear of unknown information cropping up and allows clients to trust their attorneys.

Knowing when attorney-client privilege exists, and when it does not, can be a very important aspect of any legal case.

When Attorney-Client Privilege Applies

• An actual or potential client discusses their legal issue to get legal advice (this may also include an email or letter soliciting advice)
• The attorney is working as an attorney, not as a friend or acquaintance
• The client intends and has made clear that the conversation is private

It is important to keep your communications private between you and your attorney if you want them to be kept confidential. Discussing your case with your lawyer out in a public setting does not guarantee protection of the facts if someone overhears you talking. Also, inviting a third party into your conversation does not protect it. Telling your friends “My lawyer told me to…” breaks attorney-client privilege.

When Attorney-Client Privilege Does NOT Apply

Crime-Fraud Exception: The attorney-client privilege does not apply if a client seeks legal advice to further a crime or fraud , or commit a crime or fraud.

Waived: As mentioned above, if the client informs a third party about the confidential discussions with their attorney, they waive the attorney-client privilege.

Lawyer Dispute: If you sue your attorney for malpractice, they may reveal privileged information to protect and defend themselves.

Attorneys do have a professional duty to keep conversations with clients confidential, except for discussing with your legal team. However, if a client commits any of the actions above, that confidentiality is put in jeopardy.

Penalties for Violating Attorney-Client Privilege

Clients are not the only ones who can dissolve attorney-client privilege by their behavior. Attorneys are held to a high standard, and if they do not uphold the privilege, there are consequences. If an attorney violates the attorney-client privilege, they have probably committed legal malpractice. Clients have many ways to hold their attorneys accountable.

Some things a client can do if their attorney has violated attorney-client privilege include:

Fire the attorney immediately: Fire the attorney and gather any evidence you can that shows they broke the attorney-client relationship.

File a complaint: Inform the state bar association of what happened.

Take legal action: Consult a new lawyer and file a malpractice suit against the attorney that breached the attorney-client privilege.

An attorney can be held liable for breaking the attorney-client privilege and may lose their ability to be an attorney. Reputation is also very important to attorney’s, so being involved in a malpractice suit can be very damaging to their livelihood.

If you feel your attorney compromised your attorney-client privilege, contact the legal team at the Law Offices of Robert J. DeGroot. We take our relationships with our clients very seriously and have a team devoted to doing what’s best for our clients.

Reach out to the Law Offices of Robert J. DeGroot today!