What Is Attorney-Client Privilege?
How can a client feel secure from a potential risk of having sensitive information falling into the wrong hands? By its very nature, the attorney-client relationship affords an invaluable and distinct right to have communications protected from compelled disclosure to any other party, competitor, business associate, etc.
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What Is Attorney-Client Privilege – Overview
When you have been injured in an accident at work or in any situation, seeking justice for the losses you have sustained might be difficult.
But how can you stop your attorney from testifying against you if the insurer summons them to testify? Why should you confide in an attorney with confidence?
The answer is a long-standing rule that ensures the judicial system functions as required: attorney-client privilege.
Also, the attorney-client privilege is the principle which states the attorneys aren’t allowed to divulge their client’s secrets.
When Does Attorney-Client Privilege Not Apply?
There are many situations when the attorney-client privilege doesn’t apply. Here are some of the most common exceptions to the privilege:
- Death of client – the privilege might be breached upon the death of the testator-client if litigation ensues between the legatees, the decedent’s heirs as well as other parties under the deceased client.
- Fiduciary duty – the corporation’s right to assert the attorney-client privilege isn’t absolute. The exception to the privilege has been framed when the shareholders wish to pierce the corporation’s attorney-client privilege.
- Crime or fraud exception – if the client seeks advice from the attorney to assist with the fraud, then the communication is not privileged. If, however, the client has already completed crime or fraud before divulging to the attorney, then the communication is privileged.
- When the client is about to commit a serious or violent felony.
When Can Attorney-Client Privilege Be Broken?
Wondering when the attorney-client privilege be broken? Well, since the client and not the attorney holds the privilege, the client holds the main authority to assert it or break it. When the client is a corporation, the privilege is commonly viewed as a matter of corporate control.
In simple words, the corporate management including the officers and directors, decide whether to assert or waive the privilege.
Also, the issue of breaking the privilege arises most commonly when communication is witnessed by a third party or when the client doesn’t intend the communication to be confidential.
If the communication is disclosed to a third party after a privileged exchange between client and attorney, can you say that privilege has been waived? Possibly.
What Constitutes an Attorney-Client Privilege?
Many clients assume the relationship exists and mistakenly rely upon the protection of the privilege, but the privilege doesn’t exist until the relationship is properly established. Now, generally, the attorney-client privilege doesn’t actually hold until both agree on the client representation.
The courts have faced the important task of determining where the attorney-client privilege applies when a corporation is a client.
When Does Attorney-Client Privilege Apply?
The attorney-client privilege applies to any and all communication between the attorney and someone with whom they have an established professional relationship as the client. Importantly, the rule clearly states that lawyers the lawyers should not reveal the contents of the communication.
But there are exceptions, including the members of their legal team who are bound by the duty to maintain secrecy.
The client might choose to waive this right, but the lawyer might not at any time. Next, if the client passes away, the attorney and their team might never divulge the secrets except in rare circumstances.
Does Attorney-Client Privilege Survive Death?
Even after your death, the lawyer might not share your communication. However, it doesn’t lead to one of the main exceptions to the attorney-client privilege rules. The lawyer might reveal communication to the extent necessary to carry out the estate plan.
Usually, the lawyer can never reveal confidential communication even after the death of the client. You own the attorney-client privilege, in reality- it doesn’t belong to the lawyer. That means a lawyer who really wants to reveal privileged communication can never ever do so.
Is Attorney-Client Privilege A Law?
Yes, this is definitely law. In federal cases, the attorney-client privilege starts with the Federal rule of evidence 501 that states the federal common law governs, except that in civil cases. Also, if a claim or defense is to be resolved under the state law, then the state law governs privilege.
While the attorney-client privilege is firmly established as a legal doctrine protecting confidential communication between lawyers and the clients, its application isn’t absolute. The attorneys aren’t allowed to break the law and would face severe punishment if the law is breached.
The attorney-client privilege helps protect the client’s information from falling into the wrong hands. However, this privilege doesn’t work in some instances such as the death of client, fraud or crime exception, etc.
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