As one of the most sacred building stones of criminal defense, the right of the attorney-client privilege is acknowledged to even those with the most basic knowledge of the legal system. While most people know it exists, many do not completely understand how it operates, or what it can and cannot protect when it comes to complicated definitions of “confidentiality” and “privilege.” However, whether you are facing criminal charges or under prosecution for a state or federal crime, it is something you should know.
The right of an attorney-client privilege extends to all fields of law in which persons seek legal advice, but is of special significance in criminal law. As one of the oldest known rights surrounding confidential contact, the right of an attorney-client privilege usually ensures that what you say to an attorney cannot be repeated to a third party by that lawyer. This definition is an essential one, and it is based on two important functions:
Encourage truthfulness between clients and their attorneys (or, as the U.S. Supreme Court has famously acknowledged, “full and frank” disclosure) and make it easier for lawyers to provide candid advice and effective representation;
The right of the attorney-client privilege covers only confidential correspondence. It does not protect the underlying information and only has the power to protect it if certain requirements are met, such as:
– Where information is supposed to be confidential;
– When contact is made in order to receive or allow legal counsel or advice (i.e. it does not apply to communications that do not require legal advice).
While the terms “confidentiality” and “privilege” are often used interchangeably, they are distinctly different in terms of the ethical standards and guidelines to which lawyers are bound. On their face, all information lawyers are concerned with keeping them confidential, and both preserve the client’s right to openly trust his or her lawyer. However, when it comes to when and how they are used, the nature of the information they protect, and the exceptions to which they are subject, there are real variations. For instance:
Confidentiality is an obligation of legal constraint on what a lawyer may say in relation to the client’s representation. Almost every state has ethical guidelines based on those laid down by the ABA (American Bar Association). In the absence of informed consent, an attorney does not disclose details relating to the representation of his client, and the infringement of that obligation may lead to disciplinary action, although there are expectations.
On the other hand, the right of the attorney-client is a matter of proof and has originated from common law (which is derived from court rulings rather than written codes), although some states have developed laws on the rule of law in terms of evidence and which cannot be used against the defendants in the court of law.
Confidentiality and privilege can be nuanced concepts, even for certain legal practitioners. For the purposes of this blog, the general rule of thumb is that lawyers may be required by a court to reveal information relating to the representation of a client, even if otherwise covered by a duty of confidentiality, more frequently than they may be forced to disclose privileged correspondence between lawyers and clients.
Here’s what really counts and what you need to know as a client in any client-law partnership you might enter into. The law is full of exceptions, and that’s valid for the right of the attorney-client. While cases differ depending on the facts and the prevailing rule, there are occasions when “privileged” information may be revealed, and even more exceptions can result in lawyers being forced to reveal sensitive information relevant to the client’s representation.
Popular examples include circumstances where:
– A client involves or uses his or her attorney to commit or further commit a crime or fraud (referred to as the crime-fraud exception).
– The client has a lack of “good faith” (meaning they have made attempts to exploit the relationship).
– One lawyer represents two clients in the same case (meaning one of the clients cannot involve the privilege against the other).
– An attorney must disclose the details required to obtain legal fees or to protect himself against charges of fraud or misconduct involving the current or former client.
Since these principles and exceptions typically originate from common law, the concept of privileged knowledge and how far it goes is often changing with regard to new technology and modes of communication. Additionally, there may be other circumstances in which “confidential” (though not always “privileged”) information may be revealed, including issues relating to disclosures that are required to:
– Prevent death or serious injury that is “reasonably certain.
– Prevent financial harm or damage.
– Get ethical advice.
– To comply with other rules or orders of the court (dependent on the facts and the particular laws, such as laws requiring the disclosure of child abuse)
– Addressing conflicts of interest after a change of the lawyer.
In the light of the many laws, exceptions, and factual circumstances that make these principles very complex, there are certain general considerations that you, as a client, should be aware of when pursuing and dealing with legal counsel. In brief:
Be frank with your lawyer, as doing so will make it easier for them to have the representation you need and prevent them from being blind to your detriment.
Don’t tell your lawyer about a crime that you want to commit (or, better yet, don’t commit a crime at all). In these cases, a prosecutor will testify against his clients.
Know that your lawyer serves to represent you in an offensive and legal way, not to act as a co-conspirator.
Know that the right of a lawyer-client will help both people who hire legal services after being charged with a crime and others who are under investigation or suspect that they will soon face charges. Whether pre-charge or post-charge, maintaining legal representation earlier rather than later is a wise choice.