When facing legal trouble, your lawyer needs all the facts to build a strong defense. But what if there are details you’d rather keep to yourself, fearing they might not stay confidential? This shouldn’t be a concern, as you have attorney-client protection and a lawyer can be penalized for violating attorney-client privilege.
In this article, we’ll explore what attorney-client privilege is, why you can trust your lawyer, its limitations, and what happens when a lawyer breaches this fundamental legal protection.
What Is Attorney-Client Privilege?
Attorney-client privilege is a legal protection over confidential communications between you and your lawyer. Once an attorney-client relationship exists, you have the right to refuse any confidential information passed between you and your lawyer to be disclosed or exposed to people not within your immediate legal network.
This is to ensure that you, as a client, can speak openly and honestly with your attorney without fear of your words or personal information being used against you in court. Many people confuse the attorney-client privilege with confidentiality as a duty, but there’s a difference between both.
While the attorney-client privilege protects against the disclosure of your legal discussions, the duty of confidentiality, on the other hand, has broader implications. The Confidentiality as a Duty protection applies to everything your lawyer knows about your case. Any violation of attorney-client privilege is also a violation of the attorney’s general duty of confidentiality.
Both are relevant to your professional relationship with your lawyer and imply that you can trust your lawyer with privileged information about your case. Your lawyer cannot, for instance, tell the judge you are guilty if you had confessed to him prior or be forced to testify against you in court.
Why You Should Tell Your Attorney Everything
Being open to your attorney will help in many ways. For one, legal proceedings are fact-based. The more facts your legal attorney has, the better they can defend you in court. Even if you’re guilty of the accusation, your lawyer can help secure better negotiations if they have all the facts.
Besides empowering your legal aid to negotiate better, being open to your attorney can also help them plan well. When it comes to litigation, thinking ahead is everything. The more your lawyer knows about your case, the better they can spot potential challenges and provide solutions in advance.
Your lawyer not knowing enough about your case can significantly affect your footing in trial.
Are There Limits to Attorney-Client Privilege?
The attorney-client privilege does not offer endless protection of confidential information. There are exceptional cases where the legal protection can be broken. Some of them include the following:
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Future Crime/Fraud
If you confess your intention to commit a crime, your lawyer cannot keep that secret. Instead, your lawyer has the duty to alert the authorities. This would be different if you confess to a prior crime related to the case. In such a case, you would still be covered by attorney-client privilege.
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Death of a Client
When a client dies, the attorney is still obliged to keep some secrets. However, confidentiality may not apply to certain probate matters. This is especially applicable when there is no will and the administrator requires the information held confidential hitherto to administer the late client’s assets properly.
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Waiver
You can waive the attorney-client privilege, allowing your lawyer to share classified information. Only you, as a client, can waive the privilege. Until you consent to the waiver by giving an outright permission to your attorney, they don’t have the right to disclose any confidential information.
What Happens If a Lawyer Violates Attorney-Client Privilege?
The law frowns at unauthorized disclosure of information. Lawyers who violate attorney-client privilege can face serious consequences, including one or more of the following:
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Professional Discipline
Virtually every professional association frowns at unethical behaviors, and the bar association is no exception. The association has ground rules, one of which is the protection of clients’ confidential information.
Whenever a member is reported to have breached attorney-client privilege, the state’s Bar Association initiates disciplinary action. Depending on the severity of the violation and the circumstances surrounding each case, the penalties can range from private reprimands to suspension or even disbarment.
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Malpractice Claims
Where a lawyer breaches attorney-client privilege and causes harm to their client, they may also face malpractice claims. And where the client decides to sue for malpractice, this violation could strengthen their case.
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Ethics Complaints
Aggrieved clients can file formal complaints against the lawyer with the state’s disciplinary board. If the board finds out the allegations are true after investigation, the disciplinary board may impose some sanctions on the attorney.
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Criminal Charges
Although it is rare, there are instances where a violation of attorney-client privilege can lead to criminal charges against the lawyer. This mostly happens when the disclosure of information involves misconduct or illegal activities. When this happens, you have the right to sue the offending attorney.
Can You Lose the Attorney-Client Privilege?
Yes, you can lose attorney-client privilege if you disclose the supposed confidential information to a third party yourself.
For instance, suppose you discussed details about your case while another person was in the room or sent an email and copied someone else on it. In such cases, you cannot blame your attorney for the breach, as the third party may be responsible for the information leak. This is why it is advisable to keep your communications with your lawyer strictly private.
Conclusion
Your lawyer is on your side, but they can only help if you’re completely honest with them. Holding back essential details could end up hurting your case more than you realize. Of course, there are a few exceptions. But for the most part, what you tell your lawyer stays between you two.
So, when you’re in doubt, share every vital detail. It’s the best way to get the legal help you need. If your lawyer discloses confidential information about you, this violates the attorney-client privilege, and you may take legal action against them.
