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When Right Of The Attorney-client Privilege Does Not Apply

A very important doctrine of the American legal system is the attorney-client privilege. For the purposes of receiving legal counsel, the privilege covers contacts made between clients and their lawyers. Usually, parties can not be required to disclose confidences made during the attorney-client relationship under the attorney-client privilege. However, where the attorney-client privilege does not apply, there are certain exceptions, and parties can have to reveal information that has been shared between clients and their lawyers.


Other Parties

When the attorney-client privilege does not apply, one exception is if other parties are present when conversing with the attorney and the client. Sometimes, if third parties are present and are willing to hear the rights shared between lawyers and their clients, courts will find that the right of attorney-client has been breached. Of necessity, the attorney-client privilege would not be destroyed by a third party. For example, courts typically agree that the attorney-client privilege would not be destroyed by interpreters who need to be present so that the attorney and client can interact effectively. Furthermore, paralegals and certain other professionals working in the office of an attorney would also not destroy the right of attorney-client if they are present and hear confidences between the attorney and the client. In addition, often family members may be present without affecting the attorney-client privilege during conversations between attorneys and their clients. This is even more valid if the members of the family are expected to provide either the solicitor or the client with information and to assist the client in transmitting information to an attorney. It is important when talking to an attorney that the customer only confer with their attorney outside the earshot of third parties, or else there may be a case when the right of the attorney-customer does not apply.


Crime or Fraud Exception

In our legal system, it is important that lawyers and clients have candid discussions about the legal situation of the client, even though the client may have broken the law. The attorney-client privilege would usually shield discussions about the status of a client and how this can be unlawful. However, if the client uses the attorney’s guidance to facilitate a crime or a fraud, when the attorney-client privilege does not apply, this may be another case. In order to prevent detection, the courts do not want parties to engage in criminal activity and then hide behind the protection of attorney-client privilege. As a result, they will not be able to use the attorney-client privilege to prevent disclosure of details if a client wants to use legal advice for more fraudulent or illegal activity.


Exchanged details during court proceedings

The attorney-client privilege can not extend in such proceedings during litigation. For example, in most lawsuits, parties are normally asked questions under oath during a deposition at one point or another. Courts also held that during breaks at depositions, interactions lawyers may have with clients would not be protected by the right of attorney-client. In addition, if a court orders that a witness testify during a trial, the right of the attorney-client may also not be applicable for any conversations during the hearing between lawyers and their clients or any breaks during the hearing. The reason for this exception to the privilege of the attorney-client is that courts do not want lawyers and their customers to use the privilege of the attorney-client as a shield to cover actions that could have an effect on those proceedings. In any event, at some occasions during the course of a trial, the attorney-client privilege does not apply.


Documents and Specific Records

The attorney-customer privilege is typically not subject to such materials and records. The fact that an attorney serves a given client, for example, is typically not protected by this right. Furthermore, compensation arrangements between attorney and client are not typically subject to the right of attorney-client, even if the contract is a correspondence between attorney and client. In addition, even though the topic of a given meeting is shielded by the right of attorney-client, other information about a specific meeting will not be protected. For example, the parties will need to report how long a meeting took place between the lawyer and the client, who was present at the meeting, where the meeting took place, and other details. The attorney-client privilege is always not as broad as individuals might assume, and there are a variety of occasions when particular forms of records and information are not protected by the attorney-client privilege.


Client’s Death

In general, the right of the attorney-client survives the death of a client, and an attorney should not report the rights of a client who has passed away. There are several cases, however, where an attorney will be required to disclose data about the client that the attorney discovered while the client was alive. For example, if litigation ensues over the estate plan of the deceased client, a court will hold that an attorney must disclose confidences to ensure that the expectations of the client are better met. Furthermore, courts may compel lawyers to report the confidences of clients who may have died in order to decide if the client had adequate mental capacity to create a property plan.