In order to provide effective counsel, attorneys must know their clients’ business. The attorney-client privilege exists to ensure that clients are not reluctant to share sensitive and confidential information with their lawyers, even if that information is embarrassing or even incriminating.
Before relying upon this privilege and telling an attorney all there is to know about an important matter, you should be aware of some situations in which it does not apply.
In furtherance of fraud or criminal activity
You cannot use the attorney-client privilege to engage in fraud or criminal activity. Defendants must be candid with their lawyers and are able to safely reveal information related to the crimes and civil torts they are accused of, but if they intend to commit further wrongdoing, the attorney-client privilege does not apply.
For instance, a defendant may ask his attorney about the penalties for committing fraud or even admit that he committed fraud in the past, but cannot ask his attorney how to get away with continued fraud and still expect the privilege to apply.
As the U.S. Supreme Court stated in 1989, “Open client and attorney communication…ceases to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing.”
When there is no attorney-client relationship
Another condition that must apply is the existence of an attorney-client relationship. If you told an attorney sensitive information at a party or over a golf match but there was no professional relationship in place, he or she may be compelled to testify against you if the matter were to go to trial. Proof of an attorney-client relationship can come in the form of a retainer agreement, engagement letter or even a billing receipt, but usually the relationship is apparent and requires no proof.
If information given to an attorney is necessary to save a life or protect the well-being of another person, the attorney-client privilege does not apply. For instance, if a client knows the location of a missing person whose life is in danger and tells his attorney about it, the attorney cannot keep that information from law enforcement officials. The same applies if an attorney knows a client is planning a violent act against another person.
Make use of this privilege
In most cases, the attorney-client privilege ensures full and safe communication between clients and their advocates in the legal system. Exceptions are relatively rare. In most cases, you can feel free to give your attorney all the information he or she needs to help you pursue the best possible outcome.