The basics of attorney-client privilege

The confidentiality of any information shared between an attorney and a client is one of the fundamental cornerstones of that relationship. This idea is frequently referred to as the lawyer-client privilege. The concept of privilege, which has its roots in early English common law, is straightforward: a client has the right to withhold or request that their lawyer withhold any conversations that take place while they are seeking legal counsel.

Importance of privilege

This privilege is important because it allows a client the comfort to disclose all necessary factual information to an attorney without fear that such discussions will harm the client’s case. While an attorney may invoke the privilege on behalf of a client, the right originates with the client. The client, and not the attorney decides which information is confidential and should remain privileged and advises the attorney accordingly.

In the landmark case of United States v. United Shoe Machinery Corp., of 10950, the court defined the requirements for attorney-client privilege as follows:

  • Person who asserts privilege must be an actual client or must have attempted to become a client of the attorney at the time information was disclosed
  • Person to whom the communication was made must be a certified attorney
  • Communication must occur solely between the client and attorney
  • Communication must be made as part of securing legal opinion and not for purpose of committing a criminal act
  • Client is the only person who may waive the privilege

If the court determines that sustaining the privilege would significantly harm the opposing party, it may create an exception to the aforementioned rule. It’s crucial to keep in mind that a court may order the disclosure of specific information, and that the attorney-client privilege will never extend to any communications about the intention to conduct fraud or a crime. Additionally, the privilege is not applicable when an attorney is serving as a board member or business advisor to a firm.

In an effort to combat the drug war, the federal government started to restrict the attorney-client privilege in the early 1990s. The federal government pushed for a rule requiring lawyers to reveal the client’s identity and any monetary payments over $10,000.

Different client-attorney privilege laws may also be used by states. In California, all communications between an attorney and client are protected by the attorney-client privilege, but in Washington state, the protection only applies to client conversations.

One of the fundamental principles guiding a legal relationship continues to be the attorney-client confidentiality. In a lawyer’s office, everything is private and discreet, regardless of what occurs in court, so clients feel comfortable to be absolutely honest there.