June 15, 2022 | Criminal Defense
Attorney-client privilege binds your attorney not to testify about any oral or written communication between you and them. It also prevents any third party from forcing either you or your attorney to testify about such communications (by questioning you or your attorney under oath, for example). Strictly speaking, the attorney-client privilege is a rule of evidence that prevents your communications with your attorney from being used against you in court.
What Is Attorney-Client Privilege?
The attorney-client privilege is a legal rule which prevents your attorney from discussing your case with third parties, except as impliedly authorized.
Your attorney may discuss your case with other lawyers in their own firm, for example, but not with the prosecutor or the media. The confidentiality rule also applies to information about your case that your lawyer learned from third parties.
The principle of confidentiality is enshrined in the Kentucky Rules of Professional Conduct, and your attorney could face disbarment for violating it. Even if your communication becomes public, the prosecutor cannot use it against you. The purpose of the attorney-client privilege is to allow clients to speak openly with their lawyers without fear of negative repercussions.
What Circumstances Trigger Attorney-Client Privilege?
Attorney-client privilege is triggered when the following conditions are present:
- A client (or a potential client) speaks with an attorney concerning legal advice.
- The attorney is acting in their professional capacity. Drunken legal advice to a friend over beers might not trigger the privilege, for example.
- The client intended the communication to be secret.
- The client’s actions are consistent with a desire to keep the information confidential.
All four of these conditions must be present for attorney-client privilege to apply.
Exceptions to Attorney-Client Privilege
Following are some major exceptions to attorney-client privilege:
The Privilege Applies to Communications Only
The attorney-client privilege applies to communications only. Although a prosecutor cannot question your attorney under oath regarding a sex crime that you allegedly confessed to, for example, the rules for physical evidence are different. You cannot give a gun used to commit a crime to your attorney to prevent the prosecutor from using it as evidence against you.
You Can Waive The Privilege
The attorney-client privilege belongs to you. This means that you can waive it if you choose to. Your lawyer, however, cannot waive it-–the privilege belongs to you and you alone.
The Privilege Doesn’t Necessarily Apply in Public Settings
Attorney-client confidentiality does not apply if:
- A third person is present when you speak with your attorney (unless you are unaware of their presence).
- You speak so loudly in public that someone else overhears your statement.
- You are incarcerated, you speak to your lawyer over a prison phone line, and you were warned that all conversations are being monitored. This is a legal gray area because courts have issued mixed rulings.
Please note that although a third party can repeat your public utterances, your lawyer cannot.
Suppose you reveal secrets to a lawyer you are considering hiring, but ultimately you choose not to hire the lawyer. This is a legal gray area. To be on the safe side, confirm with the lawyer in advance that your statements to them will be kept confidential.
Nondisclosure Could Cause Death or Serious Injury
Suppose you reveal to your lawyer that you intend to murder John Doe the next day. Under such circumstances, your lawyer may divulge this information to the extent necessary to save John Doe from death or serious injury. Your lawyer can also testify against you in a criminal trial.
Plans to Commit Future Fraud
If the purpose of your communications with your lawyer is to arrange for the commission of fraud in the future, you cannot protect them by involving attorney-client privilege.
Communications With a Corporation’s Attorney
Remember that a lawyer working as an employee in the legal department of a corporate or other independent legal entity represents the entity, not you. As such, attorney-client privilege does not apply to your communications because you are not the lawyer’s client-–the corporation is.
Death of the Client
Attorney-client privilege sometimes lapses when the client dies–in probate disputes, for example.
Joint Legal Representation
Two parties represented by the same lawyer cannot assert attorney-client privilege against the other party.
Don’t Be Afraid to Speak Candidly to Your Lawyer
You can rest assured that any communication you share with your lawyer, even a confession, cannot be used against you. This is the case even if your lawyer irresponsibly divulgers your secrets (which is unlikely). Speak candidly with your lawyer so that they can prepare the best defense for you.
Contact the Lexington Criminal Defense Attorneys at Suhre & Associates, LLC For Help Today
Suhre & Associates, LLC – Lexington
333 West Vine Street #300-19
Lexington, KY 40507