You’ve probably heard about attorney-client privilege as a concept. It’s talked about in movies, and many people over-dramatize what it means. While it’s often misunderstood fully, that doesn’t make it less important. The attorney-client privilege is an incredibly crucial part to the client-lawyer relationship. It was created so that attorneys can trust in their client, knowing they can confide in them and allow them to deliver the best representation possible. In that same vein, did you know that another word for “attorney” is “counselor”?
That’s because attorneys quite literally counsel clients in their decision making, given their current situations. It wouldn’t be easy to counsel someone without receiving all the facts, and some clients wouldn’t feel comfortable relaying all the facts without knowing that their attorney will keep their information a secret. Thus, attorney-client privilege is needed in order for the legal process to truly work.
Attorney-client privilege exists to allow lawyers and clients to communicate freely, without fear that their conversations may one day be discoverable in a lawsuit. In general, the rule states that a client can communicate freely to the attorney, knowing that any confidential information passed onto the attorney will be protected during the client representation.
The rule can be found in Texas Rules of Evidence rule 503 and Federal Rules of Evidence rule 501. The ethics rules discuss these rules of evidence further, stating that a lawyer, “shall not knowingly: reveal confidential information of a client or a former client to: a person that the client has instructed is not to receive the information; or anyone else, other than the client, the clients representatives, or the members, associates, or employees of the lawyers law firm.”
Now that we’ve gone through a basic understanding of the attorney-client privilege rule, consider this scenario: the attorney represents an 80-year old woman who doesn’t fully understand the legal process. Because she wants to feel safe in her decisions, she and her son sign a form with the firm, stating that the son can be part of conversations and can assist her by receiving updates about the case.
You might be asking: what’s the point of attorney-client privilege in this example? Well, thanks to the rules, the son’s conversations are also considered privileged. This is because the rule also extends to any agents on behalf of the client. In the above scenario, the son would be considered an agent of the mother. So every conversation between the attorneys and the son would hold the same benefit, which allows the son to be confident that he could speak freely, knowing the communication was privileged.
The attorney-client privilege doesn’t just extend to clients and agents of clients. It also protects potential clients in some cases. It’s important to know that a formal relationship isn’t always required to establish the protection from attorney-client privilege. Potential clients who seek legal advice and don’t end up hiring the lawyer, may still benefit from the attorney-client privilege. How? Well, for the privilege to apply, communication must be for the purpose of assisting the lawyer in understanding what legal services the client needs.
If you think about most attorney consultations, this is likely what’s happening. Now, it doesn’t apply to other scenarios, such as asking an attorney about their marketing strategies or how their family is doing. But if a potential client reaches out to an attorney about possible representation for a case, they can rest assured that their conversation is protected under these very rules of evidence. It’s also important to understand that this is the base-line rule for civil cases. Criminal cases hold a different standard. In criminal cases, the rules are used more broadly to include facts that the lawyer learns because of an attorney-client relationship. This means if a client reveals something that leads to evidence, that evidence is protected under the attorney-client relationship.
As with every legal rule, there are always exceptions. First, a client may always consent to the information being divulged. The attorney-client privilege also doesn’t apply when a lawyer was expressly authorized to reveal the conversations in order to carry out the representation. When it comes to the criminal rules, the attorney must disclose what they learned if the client communication can prevent a crime, likely death, or substantial bodily harm to another person.
When these things are not likely, a lawyer may disclose whatever confidential information they were told by the client. The lawyer also may disclose the privileged information if revealing said information can fix a client’s prior criminal acts or if the lawyer’s services were used while completing said criminal acts. There are other rules that state when a lawyer must and may disclose the information. The rules do their best to protect the attorney-client relationship while also protecting the attorney from engaging in criminal activity or harming others.
The attorney-client privilege belongs to the client and not the attorney, which means the client can revoke it, but the attorney can’t (without a rule stating the attorney must or may disclose the information). The attorney-client privilege does not end when the representation ends. In fact, it carries on even after the client passes away.
The attorney representing the client may not ever reveal the conversations that were protected under this type of relationship. The attorney-client relationship has many rules and isn’t always the easiest to understand. The bottom line is that you, as a client, deserve to have faith in your representation. In order to fully trust that your lawyer is doing their job to the best of their ability in representing you, you need to be able to confide in them freely.
If you have concerns that some information you are disclosing may become public, you can always communicate that fear to your attorney. If you have specific questions about what information is protected under these rules of evidence, simply ask your attorney. They will provide you with answers that would give you reassurance.