Personal injury clients need to feel comfortable talking with their attorneys about their case, and attorneys need to be able to give candid legal advice to offer more effective representation. But what protects clients and attorneys from having to reveal what is said in these conversations, especially if the information might damage the case?
Attorney-client privilege protects specific conversations between a client and his lawyer, allowing clients to make full disclosures to their attorneys without worrying that the information might be used against them in court.
The person who holds the privilege is the person who is or is considering becoming a client. In order for an attorney-client privilege to be established, several elements must be in place:
- The attorney involved must be a member of the bar, or the subordinate of a member
- The attorney must be acting in a professional capacity
- The communication is for the purpose of obtaining legal advice
Attorney-client privilege is not absolute, and most jurisdictions have some exceptions, such as:
- If the communication took place in front of someone other than the client and the attorney
- If the conversation was in a public place (including on a cell phone) where it was overheard by someone
- If the purpose of the communication between the client and his attorney was to commit a crime
- If the client elects to waive the privilege – the lawyer cannot
But no matter who hears or learns about a confidential communication, a lawyer is obligated not to repeat it.
The Duty of Confidentiality
The client and the attorney share the duty of ensuring that the confidentiality of their communications is maintained. An attorney should not only understand the importance of confidentiality, but also take the time to communicate this importance to his clients.