Attorney Client Privilege: What Is It? How Can I Avoid Screwing It Up?
We hear it all the time, “That’s protected under attorney client privilege!” But what does it really mean? By definition, attorney client privilege is the client’s right to refuse to disclose and to prevent any other person from disclosing confidential communication between the client and their attorney. It is created to keep communications between the client and attorney private.
It also allows the client and attorney to speak openly without fear of allowing clients to divulge details of their case without worry that the same would be used against them. Only the client may waive the privilege, and that privilege continues even after death.
Attorney client privilege exists because the client needs to be able to tell the attorney and the attorney’s staff everything that is happening in the case so the attorney can properly represent the client. But the communication can only be between the client and the attorney. If a third party is involved, the privilege does not exist.
For example, if a client divulges information in a divorce case to the attorney with his or her parent or a ‘supporting friend’ present, the privilege does not extend to the third party, and that person can actually be deposed or subpoenaed to testify against the client. Often an attorney will ask this third party to leave the room when important privileged information is about to be revealed. Clients must be careful not to email or otherwise share correspondence from the attorney to third parties, or, god forbid, allow the same to be shared on social media, as that waives the privilege as well.
Where Does Privilege End?
There are times when the attorney does not have to keep privilege, most significantly when there is a confession that involves bodily harm. Those statements must be reported. In my work as a family law attorney, this includes imminent threat of domestic violence or child abuse. In those cases, the attorney is allowed to break attorney client privilege to report the danger; however, in all other cases, the privilege may be claimed or waived only by the client.
As attorneys we claim privilege on behalf of our client when refusing to disclose information to the court. Often times, a client may refuse to answer a question based on his or her Fifth Amendment rights not to self-incriminate. The most common example in divorce litigation is refusing to answer questions about adultery because, incredulously, adultery is a crime in Georgia and in 20 other states. In fact, it is a felony in Massachusetts, Idaho, Oklahoma, Michigan, and Wisconsin. It is a misdemeanor in the rest.
Nationally, attorney client privilege does not go into effect until the representation is agreed upon by both the client and the attorney; however in Georgia, attorney and client communications are privileged from the first contact with the client and before a retainer agreement is signed during the consultation process.
There is a vetting process that happens when someone contacts an attorney. The lawyer must determine whether there is a conflict of interest in representing the client. Potential conflicts could include another firm member having representing the other side in a case or having consulted with the opposing party, or having a history with some issue in the case.
Even though attorney client privilege has been part of our legal system since the beginning, there are no laws in the Constitution to protect it. For this reason it is often unclear on how it is enforced.
The type of communication is clear: The privileged information must concern legal representation. Communications regarding business or personal matters are not privileged even when made to an attorney. This is especially true in divorce proceedings where financial and medical records may be subject to a subpoena. In those cases, protective orders are typically utilized to protect proprietary information from being disseminated to people outside of the case.
It is important for clients to remember to enact their attorney client privilege before stating information on their case. The attorney needs to know what is known about the case by third parties to be properly prepared to represent the client. The attorney client privilege is in place to prevent surprises in the courtroom and so the attorney can do what is best for their client.
Jon Hedgepeth is a partner with Hedgepeth Heredia Family Law. Reach him at firstname.lastname@example.org.