What is attorney-client privilege?
Although the definition of attorney-client privilege is different among state and federal courts, establishing the privilege generally requires there to be a communication, intending to be confidential, between an attorney and their client in the process of seeking legal advice. In Florida, the law protects client communication between an attorney and prevents other agents of an attorney, such as paralegals, legal secretaries, and anyone else who may interact with the privileged information, from disclosing it.
What is the purpose of attorney client privilege?
Hiring a lawyer likely means you are in a stressful and upsetting situation which has led you to seek professional legal advice. As a result, much of the information you give to your attorney is more than likely sensitive, private, and very important for the potential or pending case.
The purpose of the privilege is to prevent attorneys from being compelled to testify against his or her client, therefore ensuring that the client not only receives accurate and skilled legal advice from their attorney, but that they feel secure and protected in doing so. Lawsuits are stressful and the purpose of the privilege is to protect your legal rights, while also providing some form of relief—no matter how small—during such difficult times.
What communications are covered by attorney-client privilege?
The privilege applies to any information between an attorney and his or her client. As a general matter, this includes information that is used or obtained in preparation for trial. Such information includes:
- Oral communications (in person, via zoom, or over the phone)
- Text messages
- Responsive communication (such as an affirmative nod or complete silence)
It is critical however, that all of the listed information be conducted between the attorney and his or her client alone. Many people worry a consultation with an attorney they have not hired or later decide not to hire, can be used as information against them in a case; this, however, is an unnecessary concern. Any of the listed information between an attorney and an actual or potential client is protected.
How do you break attorney client privilege? What is not protected?
In order to guarantee attorney-client privilege, it must be conducted between you and your attorney alone. A client gives up their privilege the moment he or she discloses any information that was conducted to their attorney to another person. The privilege is also waived if a third party is present when such communication is taking place between the client and the attorney. Even if the communication occurs in confidence with the third-party, attorney-client privilege no longer exists in such circumstances.
And although the privilege protects most of the communication between you and your attorney, information that is discoverable by another source is not. For example, giving your attorney your property’s tax records does not mean it is protected by attorney-client privilege because those records are public information and easily discoverable by an online search.
What are the exceptions to the attorney-client privilege?
Information between you and your attorney is protected to the extent that none of the following exceptions exist:
- Death of a client
The privilege may be breached if a lawsuit arises between the decedent’s heirs or other parties claiming under the deceased client.
- Fiduciary duty
If a corporation’s shareholders wish to waive the corporation’s attorney-client privilege, it may be breached.
- Crime or Active Fraud
The privilege does not apply if a client seeks legal advice from an attorney for the purpose of carrying out a crime or fraud or to conceal a crime or fraud.
- Common interest exception
If two parties are represented by the same attorney in a lawsuit, neither one can invoke the privilege against the other in any future lawsuits if the future lawsuit involves the same subject matter as the previous one where they were jointly represented.
Nonetheless, to ensure you have attorney-client privilege, speak to your attorney in private and one-on-one with all case related matters.