What Is Attorney-Client Privilege?

On Behalf of | Mar 12, 2019 | Criminal Defense

“He who represents himself has a fool for a client.” It’s an old saying from none other than Abraham Lincoln, and emphasizes the importance of having competent, qualified, and experienced legal representation when you face a legal matter. This is particularly true if you’ve been arrested and charged with a criminal offense. When facing a jury of your peers and a prosecutor who seeks to convict you of your charges, having an attorney on your side can make the difference between having your rights preserved or facing the consequences of your accusations.

But is it advisable to tell your attorney the whole truth? What if that actually means admitting you’re guilty of the charges you’re facing? Would your attorney then be compelled to testify against you in court? Could the prosecution call your attorney as a witness and force them to testify against you? The answer to this question is a resounding “no,” thanks to a rule known as “attorney-client privilege.” On this blog, we’ll explore what this rule states, what it protects, and how it enables you and your attorney to work together and fight for your defense.

What Is Attorney-Client Privilege?

Attorney-client privilege is a rule which states that communications between an attorney and their clients are protected, and thus an attorney cannot divulge the secrets their clients confide in them. Because attorneys cannot divulge these secrets, others cannot compel them to do so. In other words, a prosecutor could not call your attorney to the stand as a witness and ask them about what you’ve told them in private—it would be a violation of attorney-client privilege. Similar to how you don’t have to answer questions from law enforcement for fear of incriminating yourself, your attorney will never have to answer questions about what you’ve told them.

This rule applies to any attorney-client relationship, including prospective clients as well. If you go to meet with an attorney for the first time, you will need to discuss at least some of the details of your case with them in order to get a feel for whether or not you’re comfortable and confident with them. Your attorney will also need those details to determine whether or not they want to take your case.

What Is Protected?

Any communications between an attorney and their client are protected, so long as there is a reasonable expectation of privacy between them. In other words, any conversation in which an attorney and client are speaking solely to each other, and without risk of being overheard, can be expected to be private. If attorney and client are speaking behind closed doors in the attorney’s office, that’s reasonably expected to be private, and thus is protected by this privilege. The same applies to things like emails, traditional mail, and phone calls from private places.

This protection doesn’t actually end when your case does, either. In fact, protection continues indefinitely, and even after the client has passed away. Clients may revoke this privilege, but attorneys may not, and thus attorneys may continue to keep secrets, even after the person who confided in them is long gone.

What Isn’t Protected

However, any conversation in a public place could potentially be overheard, and thus these conversations are not granted attorney-client privilege. This is why attorneys will usually decline to meet with clients at places like crowded restaurants or coffee houses if they’re going to be discussing sensitive details regarding a case.

Furthermore, any meeting between an attorney and their client may not be attended by a third party. While the attorney generally may not discuss these secrets, the third party can, and their presence essentially negates attorney-client privilege for that meeting. It’s best to always meet with your attorney alone, and their office is usually a safe place to do so.

Two Exceptions

There are two exceptions to when an attorney may divulge your secrets. The first is common, and that’s to their legal team. Their legal team is bound by the same duty to protect your secrets and preserve them, but lawyers depend on their assistants, paralegals, and fellow attorneys to assist them in preparation and research for a case, so this is actually a good thing. Likewise, those who are on the legal team also may not be forced to disclose your secrets.

The second time in which attorneys may divulge your secrets is if they genuinely believe that you may be about to commit another serious offense. For example, if someone is caught robbing a bank, and they furiously tell their attorney they are going have someone kill the person who tipped off the law enforcement who foiled the robbery, then the attorney is actually compelled to report the threat to the authorities since it’s a genuine concern for someone’s safety. However, these cases are exceedingly rare.

Have you been accused of a criminal offense? Trust a Scranton criminal defense lawyer to help you with your case. Call the Law Office of William D. Thompson at 570-846-2819 today to request a case evaluation and get started with your defense.