Attorney-client privilege refers to the confidential communication between a lawyer and his or her client. When attorney-client privilege exists, the information related to such communications may not be used against the client in court. Information and communications deemed to be "privileged" in this fashion include discussions pertaining to the law and legal advice that is either oral or written.
It's important to note, however, that certain communications of information between attorney and client will not be considered privileged. In some situations, attorney-client privilege will not apply or it will be destroyed.
Situations when attorney-privilege doesn't apply
Here are five examples of situations when attorney-client privilege doesn't apply:
- Non-legal advice: When unrelated issues are discussed, and they don't relate to the law, attorney-client privilege might not apply. Courts will try to determine the primary purpose of the information communicated to decide whether it is privileged. If it doesn't relate to the law, then it might not be protected.
- Informed waiver: Sometimes individuals will waive their attorney-client privilege. Such a waiver, which usually needs to be in writing, is irreversible. In some cases, government entities will waive their privilege to maintain full transparency of their actions with the public.
- Third party communication: One way that privilege could be waived is for the client to consciously bring a third-party to meetings with the attorney, or when the lawyer or client discloses information to a third party at a later time. The exceptions to this rule might include language interpreters, employees of the lawyer or client, and another client of the lawyer involved in the same legal matter.
- Failure to object: Individuals might waive their attorney-client privilege by not objecting in a timely fashion to a discovery request for potentially privileged information.
- Crime-fraud exception: Privilege will also fail to apply when communication relates to discussions between a client and lawyer about how to commit fraud or another criminal act.
Is attorney-client privilege an issue in your lawsuit?
Issues surrounding attorney-client privilege could arise in a legal malpractice case. For example, perhaps a lawyer was not diligent to maintain the privacy of his or her client's privileged information. If attorney-client privilege and violations of this legal standard are an issue in your case, you might want to learn more about this important area of the law.