Attorney-Client Privilege Why Attorney-Client Privilege is Important to Your Case
Q&A with J. Rutledge Young, III
The attorney-client privilege is the cornerstone to the relationship between lawyer and client. Here, we'll talk through when it applies, who it encompasses and how.
Q: What exactly is attorney/client privilege?
A: Attorney/client privilege defines the confidential relationship between a client, or prospective client, and his or her lawyer. It’s deeply rooted in the concept of trust and the idea that a client confronting a legal issue should be able to fully and completely trust the lawyer whose advice they are seeking. Attorney/client privilege means that whatever you share privately with your lawyer for the purpose of seeking legal advice, you share in confidence. But it’s also an agreement upon which the entire United States legal system is premised. For your lawyer, it means they are legally prohibited from disclosing or discussing any of your private communications with others without your permission. And for the client, it means you should feel comfortable sharing all of the details with your lawyer so that your lawyer can give you the best advice.
Q: Why is this relationship important?
A: Let’s say you have a case, you’ve completed the discovery period with your lawyer, and you’re now heading to trial. While in the courtroom, say a damaging document or email emerges from your opponent. If you never disclosed that piece of information to your lawyer, then it will be more difficult to address the problems created by the sudden courtroom disclosure. Because of the protections guaranteed to you by the attorney client privilege, you could have shared everything with your lawyer in advance and would have probably been able to make better strategic decisions on how to address the situation before it ever arose.
Thus, the only way a lawyer or firm can provide the highest quality service to a client is if the client shares everything with the lawyer. You must be able to speak openly and honestly in order to build the best, most accurate, and most strategic case. A skilled lawyer is going to be the very best resource that you will ever have in any legal dilemma. And that’s what attorney/client privilege protects.
Q: Are there exceptions to what the privilege covers?
A: Firstly, the privilege requires that three things exist: 1) an attorney (including his whole office and staff) and a client; 2) a private communication; 3) the purpose of providing legal advice. Once you have those three things, the privilege covers everything and is construed very broadly.
An important thing to note is that this privilege belongs to the client (and not the lawyer), and the client always has the right to abandon the privilege if they so choose.
There are some coverage exceptions. The most notable is the crime/fraud exception, which takes otherwise private communications outside of the boundaries of the privilege. The attorney client privilege does not allow your lawyer to give you advice on how to commit a crime or fraud.
Also, if a non-client is present during communication, the privilege does not apply.
Q: At what point in time does the privilege legally begin?
A: Immediately — as soon as those three elements are met (the lawyer-client; private communication, and for purposes of legal advice). It applies to prospective clients too, so it doesn’t matter if you’ve paid anything, signed an engagement agreement, or similar.
Q: As a client, how early would you want the privilege to begin?
A: The sooner attorney/client privilege begins, the better, because it will give you the most flexibility in developing and implementing the strategy of your case.
If lawyer is involved, there’s no longer second guessing as to what the next step should be given the steps before. Say you know you’re going to be sued and you’re panicking about what to do first. Do you call some of the other witnesses? Do you clean up your computer? Delete your texts? Start transferring your assets to your spouse? These are the types of questions that will oftentimes race through your head.
Get to a lawyer quickly. The sooner you can begin the attorney-client privilege, the sooner the lawyer can answer all of these questions for your privately, and you will never have to disclose to anyone that you were even concerned about these kinds of things. The sooner you consult with a lawyer, the sooner a lawyer can help guide you through the process and start working on a plan to protect you from the forthcoming lawsuit.
You’ll get more strategic advice out of your lawyer relationship if you enlist them early. (Sometimes our advice is, you don't need to hire us, and it’s best to do this on your own instead. But you should at least call and that find out!)
Q: What can happen if I don’t get a lawyer involved early enough?
A: I’ll give you an example. Say you just got ripped off by your financial planner who told you this was a “can’t-lose” investment, but you lost — and big. You go chat about it with your next-door neighbor. You say some things around how you had a feeling this “can’t-lose” investment was actually high-risk and it’s your fault that you lost everything … and so continues the conversation.
If your neighbor is questioned later in a courtroom or a deposition about your conversation, they will be placed under oath and they will be obligated to tell the truth (or else risk perjuring themselves). None of your conversation with them is classified.
Therefore, at the first moment you think you’ve been taken advantage of, you need to call a lawyer — not your friend or neighbor. There’s no privilege with your friend or neighbor. Share your concerns with a lawyer first and get their advice. If it doesn’t turn into a case, at least you took the precaution. But if it does turn into a case, you won’t have to worry about what thoughts, concerns or motives you shared upfront. Your words and your case will be both confidential and carefully crafted to your benefit.
Q: What do you do if you know someone is lying under oath?
A: When a person is lying under oath, the most important question becomes what to do about it and when. For example if you know that a person has lied under oath, it is often preferable not to let that person know that they’ve been caught. There is a great strategic advantage to the person thinking that they “got away with it.” This usually emboldens a person.
Ordinarily the best time to reveal the lie for the first time is in front of a judge or jury at a time when the person cannot go back and “explain” the lie. This will usually have the effect of discrediting everything the person has said and make them and their entire presentation unreliable. Nobody trusts someone that lies under oath and nobody wants to help a liar in a courtroom.
You can put your trust in us. If you need someone to start working on a plan to protect you legally, consult Duffy & Young.