The Attorney-Client Privilege

January 4, 2021Personal Injury

Most people know that communication between a lawyer and a client is confidential, but few know why or when it applies. This special right to confidentiality is called attorney-client privilege. 

What is Attorney-Client Privilege and Why is It Important?

The attorney-client privilege is a law that protects oral or written communications between attorneys and their clients, and keeps them private. There are three essential elements that must be present:

  • The client, be it an individual or group, must seek out the advice of a lawyer. 
  • An understanding must exist that all information shared between the parties in their meetings will be treated as confidential. 
  • An understanding that the confidentiality of those meetings will be permanent, unless the attorney-client privilege is waived. 

This privilege encourages both clients and attorneys to be open and honest, since attorneys cannot legally reveal or be forced to reveal attorney-client communications. In order for an attorney to properly advise a client, they must have all of the facts, including ones that are “bad” or damaging. 

When Does Attorney-Client Privilege Apply?

Once the working relationship with a lawyer has been established, then most communication that you have with them from that point will be protected. This includes in person one-on-one conversations, phone calls, text messages, written correspondence, and emails. However, it is important that all communication meets the definition of intentional confidentiality. By this, any communication must be done with the intention of being only for your attorney’s eyes and ears, and not for the general public. 

The content also cannot be regarding any ongoing or future crimes or fraudulent acts. Otherwise, the crime-fraud exception applies, and an attorney can be forced to disclose the contents of your communication. Discussions of past misbehavior are typically covered under attorney-client privilege. 

How Attorney-Client Privilege Can be Waived Without Knowing It

Clients are the holders of the privilege, which means they are the only ones who can waive attorney-client privilege, unless the crime-fraud exception applies. Several ways that people commonly waive privilege inadvertently are by: 

  • Posting the confidential information on social media. 
  • Bringing another person to a meeting with their attorney. 
  • Using their work email to communicate with their lawyer. 

When you waive attorney-client privilege, even if it is inadvertently, the court will view the situation as you no longer wanting this information to be protected. In total, there are three types of waiver that the court recognizes: 

  • Voluntary Waiver: a client discloses to a third party specific information discussed between them and their attorney, or if a third party is present during the communication. The client is either intentionally waiving privilege, abandoning the confidentiality, or is not seeking legal advice. 
  • Implied Waiver: a client injects the advice of counsel at issue in litigation, relies on counsel as an affirmative offense, or sues for malpractice.
  • Inadvertent Waiver: when the opposing party inadvertently discovers confidential information. 

Contact Us

If you have concerns or questions about attorney-client privilege, or need help with a legal matter, speak to a St. Louis personal injury attorney at Goldblatt + Singer. We offer free consultations, and can help you understand what communication and documentation are or will be protected by your attorney. Call (314) 231-4100 today. 

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