Your Attorney Must Keep Your Secrets … To a Point

What attorney-client privilege means, and the exceptions to it in New Jersey

By Judy Malmon

Our legal system is designed to maximize the furtherance of justice and truth. Toward that end, the law recognizes a right in those accused or sued to representation by an attorney who can advocate and strategize on their behalf. This right wouldn’t mean much if what you say to your lawyer could then be available for a court to review, and so the attorney-client privilege was created.

The privilege was established as a means to promote candor between an attorney and their client. As such, the rule protects communications between the client and their attorney regarding the matter subject to representation, making it confidential. The lawyer may not be compelled to testify or produce documents regarding privileged communications. But the protection is not limitless.

No Third Parties

To protect your communication from exposure to a wider audience, you must keep the discussion between you and your attorney only. “You can lose your privilege by having a third party hear it, even if it’s a family member,” says Robert Stahl, a criminal defense attorney in Westfield. “Anyone else who sits in on a meeting potentially could be subpoenaed or questioned by law enforcement, or brought before a grand jury and compelled to testify.” This applies to conversations held in non-private locations, as well, such as a restaurant.

“When you talk in front of others, you could be waiving your privilege. What we really want people to get is: Don’t go home and talk to anyone about the case. Don’t talk to friends, family or neighbors because then you’re waiving the privilege. Simply say you’re under directions from your attorney,” Stahl adds.

Texts and Emails Count

Stahl advises his clients not to use these written forms of communication to discuss a case because of the high risk of mistakenly sending to the wrong recipient. “You’re risking sending something to a third party if you’re sending something that’s not encrypted. In criminal cases, in particular, it is much more difficult to have someone you sent something to by mistake return it, because now it’s out there.”

Once received by someone other than your lawyer, the privilege is waived and the information is discoverable.

Scope of Representation Only

Privilege applies only to the information, documents and discussions that relate to the matter for which the lawyer is representing you. Any conversation regarding something outside the scope of representation, including an unrelated legal matter for which you have not retained this attorney, is not protected.

The Privilege is Yours

The privilege belongs to the client and it’s the client’s right to claim. The lawyer may not raise it for their own protection, as in a prosecution against the attorney. “So, if the attorney is doing something illegal unbeknownst to the client, there is no privilege the client would have,” Stahl says. “But that would be a more complicated situation to work through, because if the client doesn’t know that something illegal is being done by the attorney, why should the client’s private matters be disclosed?”

The Crime-Fraud Exception

An exception to attorney-client privilege that has been in the news arises when communication between attorney and client occurred “in furtherance of a crime.” This might be an overt statement by the client, or can occur where the attorney is unaware of their own unwitting participation in a scheme.

 “If a client comes in and talks about something criminal they intend to do in the future, there’s no privilege in that, and the attorney is under a duty to report that. Or, if the person wants advice and the attorney realizes they’re trying to figure out how to commit a crime, that’s also not covered,” Stahl says.

“Also, using an attorney to unwittingly commit a crime is part of the exception. For example, having an attorney draft an affidavit that is known to be false—that would not be covered. The attorney could be compelled to testify about what was discussed with the client in that case.”

The attorney-client privilege can be a helpful protection to promote informed advice based on a client’s candid disclosure. But it’s not always straightforward. For your own protection, it’s always best to seek the assistance of an experienced and reputable attorney.

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