Privacy is rapidly becoming a luxury you may not even enjoy in your home. Almost everyone has heard stories of listening devices like Alexia and Siri overhearing conversations and placing unwanted orders. Furthermore, baby monitors transmit your conversations around the home, and even talking to trusted friends and family doesn’t necessarily ensure your discussions remain private.

You know you can trust the confessional, where what you say to your priest remains private—but what about when you need legal advice? While Attorney-client Privilege upholds trust in legal relationships, it does not apply to every conversation. Before you sit down for a talk with your lawyer, here’s what everyone should know about client-attorney privilege.

What is the Client-Attorney Privilege Rule

Client-attorney privilege is a rule that protects your discussions with a lawyer, which extends to both oral and written communications. 

Under the rule, attorneys cannot be forced to discuss your communications with others, including the police and the court. In other words, the authorities cannot threaten, cajole, or use any other type of force to get your attorney talking about your secrets. Client-attorney privilege is legally binding.

Why does the privilege rule exist between clients and their attorneys? The simple answer is to encourage clients to be open and honest with their lawyers, which makes it easier for attorneys to defend or present their client’s case in court.

When Does Client Privilege Apply

If yo’are having a casual conversation with a friend who happens to be an attorney, client privilege does not apply, which means anything you say can be repeated without legal consequences.

So, when does client privilege apply? Privilege kicks in when you get legal advice from an attorney or anytime the lawyer is acting in their professional capacity. Yes, client privilege can apply if you ask for legal advice at a party. However, you also need to let the attorney know you’re asking for guidance in their official capacity.

What about after your case is over? Does privilege end with your case? The answer is no. Privilege can even extend after a client passes away. Unless you give consent, client privilege typically lasts for life.

There are exceptions to the rule, and an important example of this is Swidler & Berlin v. United States, 524 U.S. 399 (1998). In this case, the court ruled that the attorney’s notes were no longer privileged after the client’s death.

How to Prevent Client-Attorney Privilege From Being Overturned

Chances are, this is not something you or your attorney need to worry about. Very rarely is privilege between a client and their attorney overturned. However, it can happen. Sometimes, in surprising ways, and the United States v. White, 970 F.2d 328 (7th Cir. 1992) is a prime example of this. 

Notes between a client and their attorney are seized by customs agents who listen in on a conversation between the detainee and their attorney. Evidence against the client is discovered due to the overheard conversations and used against them in court. The question before the courts is if the evidence can be legally used since client-attorney privilege was not observed.

While the likelihood of this happening to you is slim, you want to take steps to ensure the courts cannot overturn your client-attorney privilege.

• Always address any written communications to the attorney directly. Use the attorney’s legal name and job title. Simply writing ‘private and confidential’ is not enough to ensure privilege.
• Close all communications with a legal advice question or thank the attorney for their opinion/analysis. The courts will want to see proof that you’re writing to the attorney on legal matters.
• Label each written communication and the envelopes with “Client-Attorney Privilege Information.” This label is enough to prevent others from reading your letters and notes.
• Do not copy others onto your emails with your attorney. When you send emails to anyone other than your attorney, you’re violating your right to privilege. The only exception is when you have more than one attorney working on your case.

Your attorney will advise you against discussing case details with others, which is advice you want to follow. Others can be called to testify against you, and client privilege does not apply.

When it comes to oral communications, it’s easier to prove and protect client-attorney privilege. Basically, anything you say to your attorney is protected by privilege. Just make sure the lawyer knows you’re disclosing information to them in their official capacity.

When Does Client-Attorney Privilege Not Apply

There are times when client-attorney privilege is not a protected right. If you’re planning on committing a crime and give your attorney a heads up, your lawyer can alert the authorities. 

This exception to the privilege rule also extends to preventing harm to others. For example, if you’re forming a plan to harm someone else, your attorney has a moral obligation to let the authorities know.

Your attorney can also break client privilege to ensure your last will and testament is carried out to your final wishes. An example is if a beneficiary contests the will, citing your mental instability. In this instance, your attorney can authorize the release of your medical records to prove mental competence.

What Happens if an Attorney Breaks Client Privilege

To ensure clients are comfortable sharing all details of their cases with their attorneys, breaking privilege often results in serious consequences. Attorneys that violate the client privilege rule will be brought before the law-licensing board.

Sanctions can include financial penalties and a temporary hold on the attorney’s ability to practice law. Disbarment can also occur. Disbarment means the lawyer loses their license to practice law in the state. Sometimes, the disbarment can prevent an attorney from practicing law in any other state.

Your Attorney is Here to Protect Your Legal Rights

Thanks to the assurances you get from client-attorney privilege, you shouldn’t worry about your communications with your lawyer becoming public. The privilege rule is in place to help you feel comfortable discussing your case. 

If you have questions about confidentiality, ask your attorney before discussing your case. They can provide the insight and guidance you need to help you every step of the way.

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