When Does The Attorney-Client Privilege Begin?

Like priests, physicians, and therapists, attorneys take an oath to protect the confidentiality of our clients. This protection is professionally termed the “attorney-client privilege.”  

It’s essential to understand what attorney-client privilege is and when it begins before consulting or hiring an attorney.  There are exceptions, and certain boundaries attorneys must uphold, so knowing these boundaries enables you to make conscientious decisions about what information you do and do not disclose. 

The Short Story On The Attorney-Client Privilege 

If you are able to read and understand the American Bar or California Bar definitions and explanations of the attorney-client privilege, I recommend you apply for law school.  However, to protect you from the convoluted legalese, our firm uses the user-friendly Nolo version instead: 

The attorney-client privilege is a rule that preserves the confidentiality of communications between lawyers and clients. Under that rule, attorneys may not divulge their clients' secrets, nor may others force them to. The purpose of the privilege is to encourage clients to openly share information with their lawyers and to let lawyers provide effective representation. 

The purpose of the privilege is sound, but it comes into play only when individuals communicate with an attorney in a professional capacity. In other words, there are situations worth noting before divulging all of the information you have about a case if you don’t want to risk confidentiality. 

The Attorney-Client Privilege Begins When… 

There are general rules about when this privilege begins. Generally, the privilege is triggered:  

• When you share information with a prospective or retained legal professional; 
• When you speak to a lawyer in a professional capacity, rather than as a friend; 
• When you make it known you want the information shared to remain confidential and that request is obviously intended by your written or spoken communication. 

Whenever you schedule a consultation with a lawyer, you can rest assured the attorney-client privilege is enacted. We know you are hiring us as professionals and we make it known that everything you share with us is confidential.  

Similarly, suppose you email our office about a potential case and you share details about the incident or your injuries. In that case, we are obligated to honor the confidentiality of the communication because your written communication was sent to our law firm in a professional capacity. 

If, however, you meet someone at a party or in the elevator and you learn they are attorneys, you cannot just share all of the information or queries you have and expect attorney-client privilege to be triggered. Instead, you need to ask the attorney first whether or not the communication will remain confidential. Alternatively, you should specify that you are sharing sensitive information and get a verbal confirmation the information will not be shared or disclosed. Otherwise, the attorney may be obligated to share some or all of what you said with the authorities or other relevant parties. Failure to confirm the confidentiality of the communication at the outset could compromise your case. 

If you are concerned about the confidentiality of information shared, ask the attorney or prospective attorney directly. It is better to have peace of mind that you are protected than suffer the anxiety experienced by over-sharing.   

There Are Exceptions To An Attorney’s Confidentiality Agreement 

In general, everything you share with an attorney in a professional capacity, whether during a consultation or after hiring the attorney, is kept confidential.  However, there are exceptions to these general rules, including in the following situations:

You waiveattorney-client privilege

Sometimes, depending on the need, clients waive their right to confidentiality and willingly share information they have with others to support their case. 

After your death 

If you die, your attorney may have to disclose all or some of their files or testify in court if any prospective information from you has relevance to a current case or situation. This happens most often in the course of estate or probate cases, or in cases where our clients’ heirs or other related parties require information to navigate their legal affairs. 

Fiduciary duty

Lawyers working for corporations may have to break confidentiality with their direct clients if the courts order them to do so due to the corporation’s shareholders’ requests or needs. 

Crime or fraud exceptions

If you’ve ever had therapy, you know that therapists protect your confidentiality unless you state or imply you plan to hurt yourself, hurt someone else, or if the abuse of a child or elder is at stake. Lawyers have similar obligations. If a client expresses intentions to harm themselves or to commit a crime against another - or to further the crime in question - we are obligated to report it. Also, if the lawyer suspects you have hired them purely to “confess” or share information about crime or fraud to intentionally protect the information, we must report such to the proper authorities. 

Common interest exception

If two or more parties have separate attorneys but are allied in a common interest, there are scenarios where information is shared or certain conversations may be privy to others.  

The government passes a law that permits disclosure

You may remember the American Patriot Act that was ordered by the U.S. Congress in the wake of 9/11. This act and the ensuing rules “...authorizes the Attorney General to order the [Bureau of Prisons] Director to monitor or review communications between inmates and lawyers for the purpose of deterring future acts that could result in death or serious bodily injury to persons or property…” and there only need to be certain suspicions in place for the rule to be enacted. 

Your attorney will let you know if they suspect the information you share might fall within one of the exceptions to the attorney-client privilege.   

Are you interested in scheduling a confidential consultation with a Bay Area personal injury and accident lawyer? Contact Burneikis Law.