What is attorney-client privilege?

In recent weeks, we’ve heard a lot in the news about “attorney-client privilege.” It’s one of those phrases thrown around by the talking heads on TV whether they know what it really means or not. It is an essential safeguard that secures your privacy and makes it possible for an attorney to represent you in the best way possible. At its most basic level, attorney-client privilege means your attorney cannot be forced to share your private information with anyone else – not your family members, not your employer, not even to law enforcement - with a few specific exceptions, which I will mention later.

Attorney-client privilege is closely associated with confidentiality, or the promise your attorney makes to keep all of your personal information secret. Not only your attorney, but everyone in the law firm (secretaries and paralegals included) is covered by the same promise of secrecy.

The privilege applies when an actual or potential client speaks with an attorney to get legal advice, the client intends the communication to be private, and the attorney is acting as a professional (not as a friend, for example). The privilege belongs to the client, not the lawyer.

Once you establish this relationship with a lawyer, it is vital that you take advantage of this promise of confidentiality and speak openly and honestly about your legal case. Unless your attorney knows “the truth, the whole truth, and nothing but the truth” there is a chance that she might not be able to give you the best advice possible. The promise of confidentiality is one way to make you comfortable sharing this kind of material.

Keeping a client’s secrets is one of the most important obligations of any attorney. The rules of confidentiality are drilled into us throughout law school, and all lawyers are required by the State Bar Association to abide by them.

The concept of attorney-client privilege has been around for centuries, and it’s one of the most important safeguards you have in the legal system. Make sure you take full advantage of this privilege and ask your attorney if you have any questions about specific topics or documents you want to protect.

One of the exceptions to the privilege which I mentioned earlier is when the client is in the process of committing or intending to commit a crime or fraudulent act and the client tells the lawyer about it with the intent to further the crime or fraudulent act or to cover it up. Your lawyer’s duty is to help you take advantage of the protection of the law – not to help you break the law.