Breaking Down Attorney-Client Privilege: What It Means and How It Can Affect Your Case
Attorney-client privilege is a rule of evidence that prevents your attorney or a third party from using privileged communication against you for legal purposes. It applies to both personal injury claims and criminal prosecutions.
A lot of people fail to distinguish between attorney-client privilege and lawyer-client confidentiality, which is a closely related and equally important concept.
The Purpose of Attorney-Client Privilege
The purpose of attorney-client privilege is to encourage clients to speak freely to their lawyers. Without this privilege, clients would not dare to tell their attorney the whole truth for fear the legal system would use it against them.
In fact, if it weren’t for attorney-client privilege, an attorney might even advise their client to refrain from candor in their communications. This would seriously compromise the lawyer’s ability to protect their client.
Attorney-Client Privilege Applies to Information, Not People
The primary focus of attorney-client privilege is to restrict the use of privileged information, not to muzzle certain individuals. A court will not allow the admission of privileged information into evidence, regardless of whether it is your attorney or a third party who seeks to admit it.
A court will, however, allow you to testify on communications that fall within attorney-client privilege. This is because the privilege belongs to you, and you can waive it as you see fit.
A third-party eavesdropper can testify on privileged information if (and only if) you forfeited your privilege by failing to act with reasonable care to protect the confidentiality of the information – for instance, by speaking too loudly in public.
As long as you acted with reasonable care to protect confidentiality, even an eavesdropper cannot testify against you.
How Does a Communication Become Subject to Attorney-Client Privilege?
All of the following factors must be present for attorney-client privilege to arise:
- You sought legal advice from a lawyer acting in their professional capacity.
- You expected the communication to remain confidential.
- You make reasonable efforts to keep the communication confidential.
The law is murky when you seek legal advice during a free initial consultation because you have not yet hired the lawyer.
Exceptions to Attorney-Client Privilege
If an exception to attorney-client privilege applies, a court could compel the attorney to reveal this communication under oath. Refusal to answer would constitute contempt of court, and lying would constitute perjury. Both of these are criminal offenses.
Some important exceptions to attorney-client privilege include, but aren’t limited to, the following:
- Physical evidence: You cannot keep a gun out of evidence by giving it to your lawyer and telling them to hide it for you.
- Impending crime or fraud: If you tell your attorney, “I killed my wife for her life insurance policy,” your lawyer cannot testify about your confession. If, on the other hand, you tell your lawyer, “I’m going to kill my wife tomorrow,” attorney-client privilege would not apply, and your attorney should reveal this information to the appropriate authorities.
- The death of the client kills attorney-client privilege to the extent that the attorney needs to testify about certain probate estate matters.
- Corporate counsel: A corporation is an abstract legal entity. Corporate counsel represents the corporation itself, not any particular individual within it. Information you divulge to corporate counsel is privileged only to the extent necessary to protect the corporation.
- Joint representation: In cases of joint representation, you cannot invoke attorney-client privilege to gain an advantage over the other client your lawyer is representing.
- Implied permission: Your lawyer can divulge privileged information to other members of the same law firm unless you specifically forbid it.
- Insecure communications. You forfeit attorney-client privilege, for example, if you divulge information over a prison phone when you know that the prison monitors all calls.
If you ever wonder if attorney-client privilege applies, it is best to ask your lawyer upfront so that you can understand your rights.
Examples of How Attorney-Client Privilege Works in Personal Injury Cases
A few practical examples of how attorney-client privilege might apply in personal injury cases are as follows:
- You are involved in a car accident lawsuit where liability is in dispute, and you secretly admit to your lawyer that you had been drinking the night of the accident. The court cannot use this confession against you.
- Relatives of a deceased personal injury victim file a wrongful death or survival action. The court cannot use any privileged information to deny or reduce the value of a personal injury claim. Naturally, a deceased accident victim cannot waive the privilege.
- While testifying on your own behalf, you divulge privileged information. This is considered a waiver of the privilege, and the court can use the information against you.
There are many other scenarios in which attorney-client privilege can play a decisive role in a personal injury case.
Talk to a Lawyer if You Think You Might Have a Personal Injury Claim
You can almost certainly trust any personal injury lawyer to protect your confidentiality needs. If there is any doubt, you can always research the lawyer’s disciplinary records using the “Find a Lawyer” tab on the website of the State Bar of Texas.
If you have not hired the lawyer yet, remember to confirm that lawyer-client confidentiality applies before you begin the consultation. That way, you can assure that what you say during the meeting will be protected.