Attorney-client privilege refers to the communication made between a lawyer and their client. It is protected and shouldn’t be disclosed. This privilege ensures that a client can reveal accurate information to their lawyer when they seek legal advice without the fear of having the information disclosed to others. Furthermore, the legal office staff working with the attorney must not disclose this private information. Due to this privilege, the lawyer cannot be forced to testify against their client.
However, not all communications are protected by this privilege. Certain factors come into play for the attorney-client privilege to apply. However, there are situations where the attorney-client relationship may not apply. Below are the situations where the attorney-client privilege is not applicable.
The Crime-Fraud Exception
The communication intent determines whether this privilege applies or not. If the client communicates with their attorney with the intention to commit or cover up a fraud or crime, then the privilege will not apply. The client must do any or both of the following for the crime-fraud exception to be in effect:
- Already committing fraud or crime
- Communicated with their attorney on their intention to continue committing the fraud or crime or covering up one
Under any of these conditions, the courts will decide that the crime-fraud exception is in effect. This applies even if the lawyer knows nothing of the fraud or crime. In this sort of situation, the lawyer might receive a subpoena to reveal the communications from their client once it fulfills the crime-fraud exception. Some attorneys might be forced to inform authorities of their clients’ intentions or actions following ethical practice.
Some states allow attorneys to reveal information about their clients that can prevent death or serious injury. Should a lawyer fail or refuse to report such information to the appropriate authorities, they can be charged with criminal charges or disciplinary sanctions. You can learn about the sanctions lawyers might face. However, if the fraud and crime were committed in the past, especially if the public knows about them, then the client can share such information with their attorney.
Information the Attorney-Client Privilege Does Not Cover
The following information is not covered by the attorney-client privilege:
Perjury
If a lawyer is aware of their client’s intention to lie under oath or has already done so, they might be disciplined or even disbarred. Therefore, attorneys are duty-bound to only present true and credible evidence. Furthermore, if the opposing attorney discovers that the client of the prosecuting lawyer is guilty of perjury, the credibility of the prosecuting lawyer will be tarnished, and the court might even hold them in contempt.
Threats
An attorney is mandated to report when their client threatens to injure someone else. This is quite common when the client is harmed in one way by the individual being threatened.
Critical Evidence
If there is a critical piece of evidence that is necessary for solving a crime that was communicated to the lawyer, the attorney-client privilege does not cover such information. You can read this article to learn about the evidence rules every new trial lawyer should know. Therefore, the lawyer has to divulge this information.
A client can unknowingly waive the attorney-client privilege by doing the following:
- Sharing private information on social media
- Letting a third party be on-site when they meet and communicate with their attorney
- Communicating with their lawyer through an office email address
When you do any of these, no matter how much you argue that you didn’t mean to waive the privilege, the court will uphold that you’ve invalidated the confidentiality of such information. However, the dynamics of the court case might still cause the privilege to be upheld.