Attorney-Client Privilege: Expectation vs. Reality
Even if you don’t work in the legal profession, you’ve likely heard of attorney-client privilege. You’ve probably read about it or seen it depicted on TV. While it does exist, many individuals won’t find it exactly like they imagined if they encounter it in real life.
We’ll discuss attorney-client privilege now. We’ll cover the basic concept, how it works, and situations where it doesn’t.
What Does Attorney-Client Privilege Mean?
While attorney-client privilege might not work how you anticipate in every instance, you probably already know about the basic concept. In a nutshell, an attorney and client can communicate with each other under many circumstances, and they both can expect privacy. The legal system can’t compel the attorney to tell the police, a prosecutor, a judge, or anyone else what their client said.
The concept goes back hundreds of years. It continues to evolve, but it’s a famous enough privilege that most individuals know about it, even if they don’t understand the finer points. They’re worth talking about, though, since you can’t just tell an attorney anything and then expect they can’t repeat it.
You Must Hire the Lawyer to Have This Privilege
First, you should know that to get attorney-client privilege, you must hire the lawyer in question. In other words, you can’t just walk up to someone in the legal profession, say “attorney-client privilege,” and then state anything with the understanding that they can’t repeat it to anyone.
You can hire a lawyer at any time, and once money changes hands or you sign a contract indicating they’re working for you, you can start talking with the assumption that they won’t repeat what you say. Like most aspects of the legal system, though, you should know about exceptions where this policy doesn’t apply.
What Can You Tell a Lawyer That Becomes Privileged?
Mostly, you can tell a lawyer who you’ve hired anything and expect they can’t legally pass it on. For instance, if you hire them to help you with a particular legal case, and you then discuss that case’s details with them, they can’t tell anyone what you said, even if they wanted to. If they do, that’s unethical and possibly illegal in some situations.
Lawyers know this, and they take their duty seriously. Any lawyer who breaks attorney-client confidentiality will also likely ruin their reputation if word of what they did comes out. In some respects, it’s like talking to a priest. The seal of confession in Catholicism and attorney-client privilege share a lot in common.
What Can’t You Tell Your Attorney in Confidence?
As for what you can’t tell your lawyer and expect this cloak of silence to cover it, saying you’re thinking about or going to commit an illegal act tops the list. Let’s say you’re angry, and you tell your lawyer you’re going to kill someone or maybe that you’re going to build a bomb and blow up a building. In that instance, attorney-client privilege goes out the window.
Not only can the lawyer tell others about what you said, but they legally must. If a client tells a lawyer something that makes it obvious the client intends to harm someone, or to commit some other illegal act, the lawyer must inform law enforcement about that.
In some instances, there’s a gray area. For example, if you say you’re mad enough to kill someone in the heat of the moment, maybe you’re just using figurative language. You should know about the obligation of your lawyer to report the intention of criminal acts to the authorities, though.
Be sure not to say you’re going to harm someone or something equally heinous, even if you’re only kidding. If you do so, you put your lawyer in a tough position. It is one where they’ll probably report what you said to the authorities if only to indemnify themselves from any appearance of impropriety.
Conversations with Other Individuals Present
You can also only expect attorney-client privilege if you talk to your lawyer with just you two there. If you’re in a room with a dozen other people and start talking to your attorney about something, you shouldn’t expect confidentiality, even when discussing legal matters about a case.
If you want to be sure of attorney-client privilege, visit the lawyer at their office alone, or else duck into an empty room to have a conference. If you think there’s any chance someone can overhear you, don’t take the risk, especially if you’re talking about something where you need absolute secrecy.
Child Custody Cases
While a lawyer must report you to the authorities if you’re planning a crime, they must sometimes do so for other reasons. Some courts will demand that a lawyer throw out this policy or ignore it in cases where you say something that will cause harm, even if it’s not necessarily illegal.
This happens sometimes with child custody cases. Maybe you’re fighting for sole custody, and you say something with just you and your lawyer present that makes them think you won’t act in the child’s best interest if you get what you want. Even if you’re not saying you’re going to harm the child, if you make a statement that leads the lawyer to believe you won’t be the best caretaker, they might feel compelled to tell a family court judge, even if they know it may cost you your custodial rights.
All this might seem fairly straightforward, but certain rare cases arise that we have not mentioned when attorney-client privilege does not apply because of technicalities. If you are ever not sure about whether a conversation you are having with your lawyer falls under attorney-client privilege, ask them.
They must legally tell you if anything you say does not fall into that category, and it’s certainly better in these instances to be safe rather than sorry. With highly confidential legal matters, you never want the wrong person to overhear what you’re saying or to gain access to that information.