The Attorney Client Privilege

Introduction:

While most people have heard of the “attorney-client” privilege and have a vague notion that it makes communications with legal counsel private, few people fully comprehend both the scope and the unique power of this particular rule of American law. It is, in the opinion of many writers, one of the most vital protections granted to an individual in the United States, central to the workings of our legal system, and a cornerstone of the role that the private attorney in the United States is to assume, namely the protection of the client against all adversaries, including the government of the United States.

People from abroad, used to legal systems that assume a benevolent government in which individual human rights are not paramount, usually do not understand why the American attorney is granted the ability to refuse to disclose information that the government may be desperate to obtain and why the attorney can refuse and, indeed, MUST refuse to answer questions or reveal information given by the client no matter what governmental agency or private party insists. The central concept of our United States system is to grant the individual the right to fight the government, if necessary, to protect individual rights. The assumption in the United States is that the government shall not be necessarily trusted, that the individual must be protected against the government’s usurpation of power.

The way the legal system seeks to restrict too much power in the hands of the government takes many forms, from use of juries (citizens) to determine guilt or innocence, to the burden of proof placed upon the government that must prove its case by, “proof beyond a reasonable doubt to a moral certainty.” See the article on The American System of Criminal Justice.

The privilege exists so that the individual in the United States can freely communicate to his or her legal counsel without fear that the information may be revealed. It is, quite simply, the most powerful privilege in American law, with fewer exceptions than that doctor-patient, husband-wife, or even clergy-church member privilege, as more fully discussed below.

And its primary purpose is to facilitate a relationship of trust and confidence between the attorney and the client so as to allow the attorney to adequately advise and represent the client. The core belief is that absent full and open communication with one’s attorney, one can not obtain the full protection that an attorney is supposed to provide to the client in the United States.

What is the Privilege?

Absent informed prior consent of the client, the attorney and the attorney’s agents can not reveal to any third parties any information whatsoever imparted to them by a client and any such information somehow obtained from the attorney can not be used in evidence in any proceeding. There is one exception: if the client indicates that the client intends to commit a crime which endangers someone else, the attorney is obligated to report same to the authorities.

That is the sole exception.

Thus, if you have committed a crime or know information about someone else that you wish kept confidential, and so indicate to your lawyer, he or she must keep that information strictly confidential unless you specifically instruct him or her to communicate it.

If you shot your mother and tell your attorney, that information cannot be told to anyone without your consent AND the attorney can not be compelled to reveal it by the government or anyone else.  On the other hand, if you tell your attorney you are planning to shoot your mother, then the attorney is required to go to the authorities.

This means that attorneys routinely receive information that is extremely confidential, perhaps of vital importance to other persons or the government and they MUST refrain from revealing that information to anyone, including the government and the Courts will stop anyone from seeking to subpoena the attorney or his or her records in to obtain that information assuming you claim your “attorney-client” privilege.

It is not necessary that you have paid money to the attorney or even formally hired him or her. If you reveal information to an attorney that you are meeting with the intent to possibly hire (thus have created an “attorney-client relationship”) and impart the information during the interview, that is privileged. Even if you never hire the attorney, that information remains privileged.

On the other hand, if no attorney-client relationship is intended or if it does not form the basis for the communication, then the privilege does not apply. (Just because someone is an attorney does not make him or her YOUR attorney. If you reveal information to someone that later turns out to be an attorney, that information is NOT privileged.)

Further, if the communication is done in a public place and overheard by someone who is not your attorney, THAT person can be made to testify about what you said. (In a hallway you say something to your attorney and the someone overhears it…that information can be testified to by that person. It was not a private conversation.) It is important, therefore, that any such communications be done in a locale in which only the attorney and the attorney’s agents and the client can hear or read the information imparted.

And the privilege does not belong to the attorney but to the client. The attorney can not decide to claim the privilege…the client does. Even if the attorney wanted to reveal the information, the client can assert the privilege and the attorney can not reveal the information to anyone, UNLESS it relates to the plans of the client to commit a crime, as described above.

The privilege lasts forever.

If the attorney breaches his or her duty and reveals such information, the court still can not enter it into evidence in any manner and the attorney is likely to face severe disciplinary action from the Bar and may be subject to a suit for malpractice if the client is injured. Attorneys can be disbarred for violating the attorney-client privilege.

How Unique is the Attorney-Client Privilege?

No other legal system has gone to such extremes to protect communications between the lawyer and the client. In most nations, the privilege is not applicable if the client admits wrong doing. In some other systems, such as most of the former British Commonwealth, the attorney can not defend as innocent someone who has admitted to the attorney committing a crime. In some systems, the attorney is required to reveal such information to the authorities.

In the United States the attorney’s task is to represent the client to the best of the attorney’s ability regardless of the innocence or guilt of the client. The theory holds that the individual rights of the client must be protected by competent and dedicated legal counsel and this is true regardless of the actions of the client, for those rights are as applicable to the guilty citizen as the innocent. More importantly, since each individual is charged with the responsibility of defending him or herself in the legal system, that individual must be given unfettered access to a lawyer who can provide needed advice and support.

This same privilege applies to both civil and criminal matters and indeed applies to any communication between an attorney and a client, whether in litigation or not. Thus, discussion concerning a contract, a will, a real estate deal or a family problem with your attorney is equally privileged. The attorney cannot reveal what was said or be made to testify about what was said without your prior consent.

It is important to understand that the United States has placed such extreme importance of the attorney-client relationship that the courts have made clear that to protect that relationship and the privilege it is willing to risk having criminals escape conviction. In a system in which the individual attorney is considered the most important weapon that an individual can have to protect his or her rights, the system is going to make sure the attorney and client can communicate freely and the privilege is the main instrument to achieve that end.

 What the Privilege Does Not Allow.

It is important not to confuse the privilege with the ability to commit perjury. (Perjury is testifying falsely under oath.) No attorney can knowingly utilize perjury to prove his or her case. Indeed, if your attorney sees you committing perjury on the stand, he or she may be required to withdraw from the case or not allow the perjury to influence the result of the case.

Thus, while you know the attorney will not reveal what you stated to anyone absent your consent, it does not mean the attorney can conspire with you to commit the crime of perjury. The information will remain secret: but that does not mean the attorney can ignore the truth and let you testify contrary to the truth you have told him or her.

Nor can the attorney plan the case to utilize perjury. The attorney can attempt to plan a case to hopefully avoid having to voluntarily disclose the particular harmful truth: the attorney can not intentionally misrepresent the truth, nor assist you in doing so.

The privilege is not a license to find a conspirator to commit perjury: it is a tool to allow you to communicate effectively with the attorney to plan your case appropriately within the bounds of the ethical rules of the Bar.

The Privilege Under Attack?

The various policing authorities have long attempted to pierce through the privilege, feeling that if the lawyer knows facts to help discover a crime or allow conviction, that somehow the lawyer should be made to assist the authorities. The latest such effort was in taping conversations between the lawyer and the client in various prisons with the federal government claiming that to combat terrorists they must be able to know what is being said. The angry reaction of the Bar and the refusal of the courts to allow the tapes to be used has caused the government to back away from this action once again, but one may assume that the privilege, while still powerful, will be a constant target of prosecutors in the future.

Should You Tell Your Attorney the Entire Truth?

It is absolutely critical to be fully truthful with your own legal counsel. Any lawyer will advise you that he or she can not give you good strategic legal advice unless they know the facts and all the facts nor can they prepare the case or the negotiation effectively. To expect legal advice predicated on false information to be useful is to expect a mechanic to fix your automobile when you misadvise him as to what is wrong with the car.

In an adversarial system such as the United States, invariably there are parties on the other side seeking to win their case by making you lose your own. Even in a contract negotiation, the opposite negotiating party will be seeking to maximize their position and negotiating posture. Thus the “truth” is likely to come out in any event and, in the case of litigation, at the worst possible time. This writer well remembers one of his first trials in which a witness took the stand with remarkably damaging testimony while the jury sat and listened. The existence of the witness had been known but the client had assured this writer that the witness had not been present and could not have seen the accident. The client had neglected to mention (due to embarrassment) that the witness and the client were having an affair and that the witness had been with the client in the car and obviously able to see the accident at the time. Had the client revealed the truth, then we could have discovered ways to invalidate her testimony, perhaps, since it later turned out that she had a monetary interest in the other side winning the case and, since the affair was over, was angry and bitter against the client.  All this was only revealed after the trial was over and our cross examination was futile since we had not had time to prepare and investigate her testimony for impeachment purposes.

A famous trial attorney perhaps put it best: “You want me to win? Give me the truth, the whole truth, and nothing but the truth and we have a chance since I can prepare.  Hold back and you cripple me. Hold back something important and you probably destroy the case. It’s up to you…you want to waste my time and your money, then lie to me or only give me half of what I need to know.”

Which is what the privilege is all about, of course. It exists so you can “arm” your lawyer with the facts she or he needs to win your case or win your contractual negotiation. It allows you to be more open with him or her than with anyone else in your life and that tool is vitally important to enable you to form the type of close bond and communication with your attorney that is central to effective representation.