Exceptions To Attorney-Client Privilege

What Is Attorney-Client Privilege?

Attorney-client privilege is a long-established court-recognized principle that protects the substantive communication between a client and their counsel, whether appointed legal counsel or someone they hired. The purpose of attorney-client privilege is to foster a relationship that encourages clients to fully disclose all the facts to their attorney without fear of repercussion so that they can adequately, competently, or ethically carry out their representation of clients.

While attorney-client privilege is taken very seriously, this does not mean that confidential communications between an attorney and their client are fully non-discoverable. Instead, certain circumstances may be discoverable such as cases where the privilege may have been waived, where the client expressly consented to or implicitly disclosed the information to a third party, or by failing to timely assert the privilege.

Attorney-Client Relationship

There are two elements that develop an attorney-client privilege:

• A person seeks advice or assistance from an attorney, and
• The attorney appears to give and agrees to give the client advice or assistance.

Before an attorney-client relationship can be established, an attorney must determine if a conflict of interest would prohibit their representation. A conflict of interest may arise because of obligations to non-clients, former clients, and even prospective clients.

For example, if there are two defendants at odds who both allegedly participated in a crime being charged, and the attorney speaks to one of the defendants and agrees to represent them, they cannot generally establish an attorney-client privilege with the other defendant unless both defendants agree. Before an attorney-client relationship is established, several steps usually are taken:

• Initial client consultation
• Screening
• Accepting or declining representation
• Confirming the acceptance or declination of representation in writing

Waiving Attorney-Client Privilege

Attorney-client privilege can be waived through a variety of conduct, such as voluntarily or inadvertently disclosing to a third party the conversation with the attorney. For instance, if someone has confidential communications with their attorney and then goes and tells a friend exactly what they and their attorney spoke about, then during discovery, opposing counsel may seek a deposition of the third party.

Additionally, the attorney-client privilege can be waived if the client or attorney forgets to assert it. For example, if an attorney goes to speak to their client in a police station, then fails to tell the police to stop recording a privileged conversation, and they record it, that conversation is no longer confidential.

The Crime-Fraud Exception To Attorney-Client Privilege

There are also limited circumstances in which communications can be discoverable, even if it is not waived. For example, the crime-fraud exception allows access to information that would generally be privileged and even allows access to legal work product if there is information concerning the furtherance of a future crime. To get around the attorney-client privilege, the party who is seeking the confidential communication is required to satisfy two things:

• The client is going to or intends to commit a future crime
• The client and attorney’s conversations that are being sought were in furtherance of the alleged future crime

Speculation of a future crime is not enough to get confidential communications disclosed. Instead, the evidence must demonstrate a basis to suspect an actual perpetration of a crime and that the communications being sought furthered the crime’s perpetration.

Common Interest Exception

The common-interest privilege may also be known as a joint defense privilege that extends attorney-client privilege to two or more parties. Under this common-interest exception, clients can disclose information to their attorney in the presence of other clients and not waive the attorney-client privilege. This exception aims to prevent joint parties and their attorneys from disclosing confidential information or work product learned or acquired through a joint defense.

To avoid having to disclose confidential communication acquired through the common interest exception, a client may show the following:

• The communications were in furtherance of a joint defense
• The statements that are privileged were designed to further the joint defense
• The clients did not waive their privilege

For example, if three defendants are speaking to their attorney in furtherance of their defense together, that information will likely be privileged and not discoverable. However, if the defendants begin to discuss information that is not in furtherance of their defense together, that information may be discoverable. As a result, if one defendant needs to speak to the attorney about their personal defense, it is essential to ask to speak to the attorney separately from the other defendants.

Termination Of Representation

There are various ways that an attorney-client relationship can be terminated because both parties have the right to terminate the relationship. First, a client has the right to terminate the relationship with the lawyer at any time, regardless of the reason. This does not mean that when the attorney-client relationship is terminated, the client does not have to pay for the work provided. When the relationship is terminated, the client will receive an invoice for the work performed and the costs endured by the law firm.

Second, an attorney is allowed to terminate the attorney relationship; however, attorneys are only allowed to terminate the relationship when they can show they took reasonable steps to avoid reasonably foreseeable prejudice to the client’s rights. This can be achieved by giving the client sufficient notice to retain another attorney.

Hiring A Criminal Defense Attorney Who Will Keep You Informed

If you or someone you know is curious about attorney-client privilege, would like to establish a relationship with an attorney, or has had an attorney terminate their representation, contact George Law Firm at (248) 247-7459 or online.