As one of the most “sacred” foundational bedrocks in criminal defense, the attorney-client privilege is known to even those with the most cursory understanding of our justice system. Though most people know it exists, many do not entirely understand how it works, nor what it can and cannot cover when it comes to complex concepts of “confidentiality” and “privilege.” If you’re facing criminal allegations or under investigation for a state or federal crime, however, it’s something you should know.
What is Attorney-Client Privilege?
The attorney-client privilege applies to all areas of law in which individuals seek the counsel of legal professionals, but is of particular importance in criminal law. As one of the oldest recognized privileges concerning confidential communication, the attorney-client privilege generally means what you say to an attorney can’t be repeated by that attorney to a third party. This concept is an important one, and it is based on two important functions which:
- Encourage truthfulness between clients and their lawyers (or as the U.S. Supreme Court famously noted, “full and frank” disclosure), and allow attorneys to better provide candid counsel and effective representation; and
- Bolster a person’s Fifth Amendment right against self-incrimination.
“Privileged” Information & Confidential Information: There is a Difference
The attorney-client privilege protects only confidential communications. It does not protect underlying information, and it only has the power to protect when certain conditions are met, such as:
- When information is intended to be confidential (i.e. communications between client and attorney with a third party present is not privileged).
- When the communication is made to obtain or enable legal counsel or advice (i.e. it does not apply to communications which don’t involve legal advice).
Though the terms “confidentiality” and “privilege” are often used interchangeably, they’re distinctly different in terms of the ethical rules and principles by which lawyers are bound. On their face, both concern information attorneys are to keep private, and both protect a client’s ability to freely confide in their lawyer. When it comes to when and how they are applied, the extent of information they cover, and the exceptions to which they’re subject, however, there are real differences. For example:
- Confidentiality is a duty of ethical restriction on what an attorney can disclose regarding their representation of a client. Nearly every state has ethical rules based on those established by the ABA (American Bar Association). In the absence of informed consent, an attorney must not reveal information related to the representation of their client, and violations of that duty can lead to disciplinary action, though there are expectations.
- The attorney-client privilege, on the other hand, is an evidentiary matter, and has evolved from common law (what’s derived from court decisions rather than written codes), though some states have created statutes regarding the rule in terms of evidence and what cannot be used against defendants in a court of law.
Confidentiality and privilege can be complicated concepts, even for some legal practitioners. For the purposes of this blog, a general takeaway about their differences is that attorneys can be compelled by a court to disclose information relating to the representation of a client, even if it is otherwise protected by the duty of confidentiality, more often than they can be compelled to disclose privileged communications between attorneys and clients.
Exceptions to the Rule
Here’s what really matters for what you need to know as a client during whatever attorney-client relationship you may enter into. The law is filled with exceptions, and that’s true for attorney-client privilege. Though cases vary depending on the facts and prevailing law, there are times when “privileged” information can be disclosed, and even more exceptions that can result in attorneys being required to disclose confidential information related to the representation of a client.
In Ohio, common examples include situations where:
- A client involves or uses their attorney to commit or further a crime or fraud (referred to as the crime-fraud exception).
- A client exhibits a lack of “good faith” (meaning they’ve made efforts to abuse the relationship).
- One lawyer represents two clients in the same matter (meaning one of the clients cannot involve the privilege against the other).
- An attorney must reveal information necessary as a means to collect legal fees or defend against claims of misconduct or malpractice involving a current or former client.
Because these rules and exceptions generally derive from common law, the definition of privileged information and how far it goes is also evolving in respect to new technologies and forms of communication. Additionally, there may be other situations where “confidential” (though not always “privileged”) information can be disclosed, including matters involving disclosures which are necessary to:
- Prevent death or serious injury that’s “reasonably certain.”
- Prevent financial harm or property damage to another.
- Obtain advice about ethics.
- To comply with other laws or court orders (dependent on the facts and the particular laws, such as laws requiring the disclosure of child abuse)
- To address conflicts of interest following an attorney’s employment change.
The Take-Away: The Attorney-Client Privilege in Your Case
In light of the many rules, exceptions, and fact-specific situations that make these concepts quite complicated, there are some general considerations you, as the client, should be mindful of when seeking and working with legal representation. In short:
- Be honest with your lawyer, as doing so will allow them to better provide the representation you require and prevent them from being blind-sided to your detriment.
- Don’t tell your lawyer about a crime you intend to commit (or better yet, don’t commit a crime at all). An attorney can testify against their clients in these situations.
- Remember your attorney exists to defend you in an aggressive and lawful manner, not to serve and as a co-conspirator.
- Know that the attorney-client privilege can benefit both individuals who hire legal representation after being charged with a crime, and those who are under investigation or believe they may soon face charges. Whether it’s pre-indictment or post-charges, retaining legal representation sooner rather than later is a wise decision.
If you have questions about the attorney-client privilege, confidential information, and how they work in relation to any specific criminal case you may be facing, our attorneys at Friedman Nemecek & Long, L.L.C., L.L.C. Attorneys at Law is available to speak with you during a free, initial consultation. Our legal team values our relationship with clients, and has succeeded in earning a national and even international reputation because of our focus on personalized, meaningful counsel and our respect for principles like the attorney-client privilege. Contact us to speak with a lawyer.