Understanding Attorney-Client Privilege and Confidentiality
Understanding Attorney-Client Privilege and Confidentiality
Know when the things you tell your lawyer can be kept private—and when they can’t
Written by: Enjuris Editors
Your lawyer has a legal obligation to keep your communications private. There are a few other relationships with privilege, too, like communication between spouses and doctors. But it’s important to understand exactly how and when you must communicate in order to maintain that privacy, and what kinds of communications can’t be protected.
We’ve all watched a legal drama unfold on TV where people are able to withhold information because they claim “privilege.” Beware — not everything you see on TV is exactly how it works in an actual court of law.
But privileged communication is a real legal principle, and it applies in both criminal and civil proceedings.
What is privileged communication?
Privileged communications are interactions between two people that the law considers to be protected because of the relationship between those people. That means that whatever is said or otherwise communicated between those people can remain confidential and the law can’t force either person to share it with anyone else, including law enforcement officials or the courts.
These are the relationships that are entitled to privileged communications:
Attorney and client
Doctor and patient (or therapist and patient)
Clergy (rabbi, priest, or another religious official) and congregant
Accountant and client
Reporters and sources (in some states)
In professional relationships that are protected by privilege (attorney/client, doctor/patient, etc.) the purpose is to protect the client or patient. That person has the right to have communications with their professional provider kept confidential. However, the client or patient can always choose to waive that right and allow the communication to be shared publicly or specifically with certain individuals.
Privilege applies to communication shared in a setting that would be presumed to be confidential. For example, what you tell your doctor in the hospital or during an office visit, what you tell your attorney in their office, or what you discuss with your spouse at your kitchen table are places where you can expect your communication to be private.
Privilege also extends to both spoken and written communication. In most states, this includes exchanges of information in person, by phone, text, email, letter, or any other method of private transmission.
Important terms to know
Disclosure is the act of making new or secret information known. In other words, it’s sharing a fact or information that was previously confidential or secret.
Confidentiality prevents a lawyer from testifying about statements made by a client. A lawyer owes their client a duty of confidentiality, which means that they can’t discuss information the client has shared with them with anyone else. All private information related to a client must be kept secret.
If you’re in a private setting like a doctor’s office, any other person who is an agent of the professional (the nurse, for example) would be obligated to maintain the confidentiality of any information overheard.
However, if that same communication is shared on a public bus, in a crowded restaurant, or on social media, it would lose privilege because those are spaces where it can be overheard or understood by other people.
Enjuris tip: The American Bar Association has established the Model Rules of Professional Conduct, which provides a list of standard ethical violations and best practices for attorneys.
How does spousal privilege work?
The essence of spousal privilege is this: the law intends that spouses should have an open and trusting relationship. That means confidential communications between you and your spouse can’t be disclosed (i.e. shared) outside the marriage, and you can’t be forced to testify against your spouse in court. This includes confidences shared during the marriage, even if you’re no longer married.
Of course, a spouse can choose to testify against their spouse — but they can’t be forced to do so.
Enjuris tip: There is NEVER privilege when it comes to communication shared on social media. Any photos or videos shared, comments made, posts written, or other interactions online can always be used as evidence.
Even if you didn’t share them yourself (someone else shared a photo of you)...
Even if you shared them and later deleted them (anything can live on the internet forever, even if you’ve tried to remove it)...
... once it’s posted online, you can assume it is able to be disclosed in a court of law.
If you’re engaged in legal proceedings of any kind, it’s best to be extremely selective in your online behavior. Never post anything related to your legal proceeding online, and be mindful that even seemingly unrelated or innocuous comments could work against you in the future.
There are 3 specific circumstances when attorney-client privilege applies:
When you communicate with a lawyer for legal advice, even if you haven’t yet become a client
When the lawyer is acting in a professional capacity (you’ve approached a lawyer for the purpose of professional representation; not chatting with a friend who happens to be a lawyer)
When you (the client) intend for the communication to be private and handle it that way (the information is shared over the phone or in your attorney’s office and not in a crowded public place)
In a personal injury lawsuit, attorney-client privilege becomes most important during the discovery period of the case. The purpose of privilege is so that you feel comfortable sharing all relevant information with your attorney.
But you never want to tell your attorney something that would prevent them from representing you wholly and correctly. You can never put your attorney in a position that would require them to commit fraud on your behalf, and they won’t put you on the stand if they believe that you’re going to lie under oath.
You’re not happy with the amount of money offered by the other driver’s insurance company, so you hire a personal injury lawyer to try to get a larger settlement.
Your lawyer isn’t able to get the driver’s insurance company to settle for the amount you request, so you file a personal injury lawsuit for the other driver’s negligence.
Part of the damages you’re requesting is money to cover ongoing physical therapy and a brace because of a back injury you suffered in the crash. You also claim that you’re unable to return to your job as a delivery truck driver because sitting in the driver’s seat too long is painful, and because your back injury prevents you from lifting heavy boxes. As a result, you’re asking for money to cover past and future lost wages.
But your back isn’t really injured so badly that you can’t go back to your job.
During a meeting with your lawyer, you tell her the truth — that you could go back to work, but you’ve exaggerated your back pain a little bit because... why not? The driver who hit you was negligent, anyway, so you might as well get as much in damages from them as possible, right?
Your lawyer can’t go to the judge and tell the court what you’ve said. The fact that your back is not as injured as you’re making it seem is confidential. But your lawyer also cannot ethically go before the court and claim that your injuries require you to be out of work. She also can’t put you on the stand to testify about the extent of your injuries if she knows you’re intending to lie.
That means you’ve now put your lawyer in a position where she really can’t try her hardest to win your case. She can’t stand before the judge and lie, either.
The other aspect to attorney-client confidentiality is that in order for you to win your case, the court is going to require other kinds of evidence besides just your testimony. Medical records, diagnostics like MRIs or CT scans of your back, and testimony of medical experts might be relevant to the case.
If your testimony contradicts what appears on your medical records, your case will become more difficult to win.
Attorney-client privilege is exactly that... a privilege. Tell your lawyer the truth, but don’t put them in a position where they can’t properly represent you. Tweet this
Facts: Samantha Garcia was diagnosed with cerebral palsy at about two years old. Samantha’s parents, Michelle Coffey-Garcia and Jose Garcia, petitioned the court to extend the statute of limitations past Samantha’s 8th birthday for a medical malpractice lawsuit.
The statute of limitations for medical malpractice in Florida is 2 years from the time of the incident that caused the injury or 2 years from when the injury should have been discovered. Florida courts interpret this as 2 years from when the plaintiff is aware of the injury and that there’s a possibility that it might have been caused by malpractice.
In order to determine whether the Garcias were still within their statutory time limit to file a lawsuit, the lawyers for the defendants wanted to know what lawyers they consulted about Samantha’s condition, when they were consulted, and why.
Ms. Coffey-Garcia acknowledged during a deposition that her current lawyer wasn’t the first consultation, but then she said that she wouldn’t answer further questions on the issue because of attorney-client privilege.
Conclusion: Ms. Coffey-Garcia couldn’t be compelled to answer questions related to her initial communications with attorneys who she didn’t ultimately choose for representation. The reason was that when she consulted with lawyers about her likelihood of winning a case, their answers might be considered legal advice which is protected under attorney-client privilege.
Ms. Coffey-Garcia could be compelled to answer questions about the information she received regarding her baby’s condition from other sources who weren’t the attorneys she consulted, but her communications with those attorneys from whom she sought legal advice for the purpose of representation are protected.
Can I waive attorney-client privilege?
Attorney-client privilege is waived when the protected person shares the information with a third-party.
For instance, let’s say you told your lawyer something that you expected would be privileged. Then, you told your spouse, and that, too, is privileged.
But then you told your best friend and your mom. Now you’ve shared that confidential information with people who aren’t within a protected privileged relationship to your legal case. By doing so, you’ve waived privilege and the information is no longer protected.
Remember the scenario above where the client tells the lawyer that he’s exaggerating his back pain in order to get a bigger settlement? You might tell your lawyer that although you say you can’t lift more than 30 pounds, you can actually lift up to 100 pounds. Your lawyer is bound to keep that fact confidential.
But if you’re in a store and a security camera films you lifting a 100-pound box, that’s not privileged because you told your lawyer you can only lift 30.
There would be no protection against that video being introduced in court because it was discovered without your lawyer’s having shared the information.
Enjuris tip: Communicating confidential information to your lawyer doesn’t protect it from disclosure if it’s discoverable in another way. You can’t tell your lawyer something in order to withhold it from being shared in court if it’s available from another source.
As cited in an Americal University Law Review article, privilege “protects communications made to obtain legal advice; it does not protect the information communicated.”
There are other specific ways that privilege is waived, and you can ask your attorney what they are based on your own circumstances.
Privilege is for the benefit of the person being protected. If you’re the client, that’s you. So, while your lawyer can’t communicate your information to others, you’re always free to do so.
What if my lawyer violates attorney-client privilege?
An attorney could lose their law license for violating a client’s confidentiality or privilege. If you think your lawyer has done this, you can file a complaint with the disciplinary board in your state.
What are the limitations on attorney-client privilege?
The main limitation is the crime-fraud exception. This means that if you tell your lawyer that you’re planning to commit a crime or fraud, the lawyer is required to disclose that information.
Bear in mind that overstating an injury in order to receive a larger settlement could be considered insurance fraud. An attorney isn’t allowed to break the law any more than a non-lawyer. As the saying goes, “nobody is above the law.”
Building and maintaining trust with your lawyer
It’s important to maintain a relationship of trust with your lawyer. You might have to share sensitive medical information or other communications, and you want to know that your lawyer respects your privacy.
Remember that the reason why you’re telling your lawyer your most sensitive information is because it will help your case. If you’re not sure if it helps your case, ask. No detail is too small in some lawsuits, and your lawyer will know best if something could be helpful or relevant.
You’ve hired a lawyer to win your case, which means that all those details and pieces of information should be used if they’re helpful. If you want to know how information might be used in court, it’s best to ask your lawyer.