What Is NOT Included in Attorney-Client Privilege?
If you plan on hiring legal representation, you have probably heard of the term attorney-client privilege. The attorney-client relationship is a sensitive one, and attorneys have an obligation to keep their communications with clients private and confidential. A lawyer cannot openly share or be forced to share information about his or her client, but there are certain exceptions to the rule. If crime or fraud was involved in a client’s communications with a lawyer, for example, attorney-client privilege no longer applies.
Understanding Attorney-Client Privilege
Attorney-client privilege protects communications between lawyers and people who seek legal representation. This rule allows clients to share information without hesitation so that their attorneys can provide the most effective representation possible. Attorney-client privilege typically applies whenever an existing or potential client consults a lawyer who is acting in their professional capacity for legal advice, and the client reasonably expects the lawyer to keep their communications private.
Clients can choose to waive or forfeit this privilege at any time, but an attorney cannot. Attorney-client privilege can last long after the lawyer stops representing the client, and even after the client passes away. Potential clients who never hire an attorney are also protected.
In simple terms, an attorney can never share confidential information about any past, present, or potential client without his or her permission. However, there are some exceptions.
The Crime-Fraud Exception to Attorney-Client Privilege
When consulting with a lawyer, a client may choose to disclose information about past crimes or previous wrongful acts. These communications are protected by attorney-client privilege, and the lawyer will likely be unable to disclose this information. If the client communicates with an attorney with the purpose of committing a crime or fraud, the attorney-client privilege rule no longer applies.
The crime-fraud exception applies if the following conditions are met.
- The client was in the process of committing or intended to commit a crime or act of fraud.
- The client communicated with his or her attorney to either cover up the crime or fraud, or to further his or her mission.
For example, say that a client seeks an attorney’s advice after a car accident. The client admits to the lawyer that he or she caused the accident but wants advice on how to manipulate evidence so that another driver looks to be at fault. In this situation, the client intends on defrauding an insurance company and the attorney is not obligated to keep his or her communications private. If the potential client was later arrested, the lawyer could be subpoenaed and required to testify against him or her.
Confidentiality Exceptions for Imminent Harm
Under California law, if a client tells his or her attorney that he or she plans on committing a crime that that may lead to death or serious injury, an attorney is required to disclose it. Before disclosing this information, the lawyer must make a good faith effort to stop the client from committing the act and inform the client of his or her obligation to report.
For example, say that a lawyer receives a call from a client who says that he intends to kill the person who is filing a lawsuit against him or her. The attorney will be obligated to call the police and report the threat to the police.
If you are facing any type of legal process, it is important to have an attorney on your side. As soon as possible following the initial incident, speak to a lawyer to discuss your legal strategy.