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Prof Responsibility • Communication
PR#056
Legal Definition
Under the attorney-client privilege, an attorney cannot be compelled to disclose confidential communications with the client. The privilege extends to those persons necessary to the attorney's representation of the client, and to conversations when a client seeks to decide whether to employ the attorney. The privilege survives the termination of the relationship, as well as the death of the client.
Plain English Explanation
When a client talks to you about their legal issues, it's as if they're in a soundproof room. Whatever they say stays between you and them. This principle, known as attorney-client privilege, exists because our legal system recognizes that clients must feel completely secure when communicating with their lawyers. If clients were concerned that their lawyers might disclose their secrets, they might not be fully honest, which could hinder your ability to provide effective legal representation and could undermine the functioning of the legal system.
The privilege extends beyond face-to-face conversations; it covers phone calls, emails, and any other forms of communication related to legal matters. It even applies to discussions that occur when a client is still deciding whether to retain you as their lawyer.
Significantly, this protection lives on even after the client does not, or the attorney-client relationship ends. This ensures that the information shared with you remains protected indefinitely.
However, the privilege is not all-encompassing. It only covers communications related to seeking or providing legal advice or representation. Casual conversations, such as discussing the weather or sports, are not protected.
The privilege can also extend to third parties who are necessary for providing legal representation. For example, if you need to work with an accountant to understand a client's financial situation for a legal matter, those communications would also be covered by the privilege.
It's important to note that while the attorney-client privilege is robust, it is not absolute. In rare situations, you might be required to disclose information, such as if it is necessary to prevent a serious crime. However, in general, clients can trust that what they share with you will remain confidential.
The privilege extends beyond face-to-face conversations; it covers phone calls, emails, and any other forms of communication related to legal matters. It even applies to discussions that occur when a client is still deciding whether to retain you as their lawyer.
Significantly, this protection lives on even after the client does not, or the attorney-client relationship ends. This ensures that the information shared with you remains protected indefinitely.
However, the privilege is not all-encompassing. It only covers communications related to seeking or providing legal advice or representation. Casual conversations, such as discussing the weather or sports, are not protected.
The privilege can also extend to third parties who are necessary for providing legal representation. For example, if you need to work with an accountant to understand a client's financial situation for a legal matter, those communications would also be covered by the privilege.
It's important to note that while the attorney-client privilege is robust, it is not absolute. In rare situations, you might be required to disclose information, such as if it is necessary to prevent a serious crime. However, in general, clients can trust that what they share with you will remain confidential.
Hypothetical
Hypo 1: Bob, a criminal defense attorney, is representing Sam, who is accused of robbing a bank. During a private meeting, Sam confesses to Bob that he did indeed commit the robbery. The prosecutor, suspecting that Sam may have admitted guilt to his lawyer, subpoenas Bob to testify about his conversations with Sam. Result: Bob must assert the attorney-client privilege and cannot be compelled to disclose Sam's confession. The privilege protects confidential communications between attorney and client, even when those communications involve admission of a crime.
Hypo 2: Sam is considering hiring Bob as his lawyer in a complex business dispute. Before officially retaining Bob, Sam meets with him to discuss the case and reveals some potentially damaging information about his company's financial practices. Ultimately, Sam decides not to hire Bob. Later, the opposing party in the business dispute tries to force Bob to testify about what Sam told him in that initial meeting. Result: Even though Bob was never officially hired, the attorney-client privilege still applies to the initial consultation. Bob cannot be compelled to disclose the confidential information Sam shared when seeking legal advice.
Hypo 3: Sam, a wealthy businessman, dies unexpectedly. In his will, he leaves a significant portion of his estate to a charity. Sam's children contest the will, suspecting undue influence. They attempt to compel Bob, Sam's longtime attorney, to testify about conversations he had with Sam regarding the will. Result: The attorney-client privilege survives Sam's death. Bob cannot be forced to disclose confidential communications he had with Sam about the will, even though Sam is no longer alive.
Hypo 4: Bob and Sam are having lunch at a busy restaurant. They begin casually discussing Sam's ongoing divorce case, speaking loudly enough that nearby diners can clearly overhear their conversation. Later, Sam's soon-to-be ex-wife subpoenas Bob to testify about what was said at lunch. Result: In this case, the attorney-client privilege would likely not apply. By having the conversation in a public place, loudly enough for others to hear, Sam and Bob did not take reasonable precautions to keep their communication confidential.
Hypo 2: Sam is considering hiring Bob as his lawyer in a complex business dispute. Before officially retaining Bob, Sam meets with him to discuss the case and reveals some potentially damaging information about his company's financial practices. Ultimately, Sam decides not to hire Bob. Later, the opposing party in the business dispute tries to force Bob to testify about what Sam told him in that initial meeting. Result: Even though Bob was never officially hired, the attorney-client privilege still applies to the initial consultation. Bob cannot be compelled to disclose the confidential information Sam shared when seeking legal advice.
Hypo 3: Sam, a wealthy businessman, dies unexpectedly. In his will, he leaves a significant portion of his estate to a charity. Sam's children contest the will, suspecting undue influence. They attempt to compel Bob, Sam's longtime attorney, to testify about conversations he had with Sam regarding the will. Result: The attorney-client privilege survives Sam's death. Bob cannot be forced to disclose confidential communications he had with Sam about the will, even though Sam is no longer alive.
Hypo 4: Bob and Sam are having lunch at a busy restaurant. They begin casually discussing Sam's ongoing divorce case, speaking loudly enough that nearby diners can clearly overhear their conversation. Later, Sam's soon-to-be ex-wife subpoenas Bob to testify about what was said at lunch. Result: In this case, the attorney-client privilege would likely not apply. By having the conversation in a public place, loudly enough for others to hear, Sam and Bob did not take reasonable precautions to keep their communication confidential.
Visual Aids
Related Concepts
In California, under the Duty of Communication, when must a lawyer disclose that they do not have professional liability insurance?
What additional exception to the attorney-client privilege does California recognize?
What are the three exceptions to the attorney-client privilege?
What is the Duty of Communication?
