What Attorney-Client Privilege Means For You
Protecting your confidential information in the attorney-client relationshipBy Benjy Schirm, J.D. | Reviewed by Canaan Suitt, J.D. | Last updated on November 30, 2023 Featuring practical insights from contributing attorney Christie A. Moore
Use these links to jump to different sections:
- What Is Attorney-Client Privilege?
- What Is the Duty of Confidentiality?
- When Does Attorney-Client Privilege Begin?
- Is Attorney-Client Privilege Absolute?
- Find an Experienced Attorney
Being charged with a crime is incredibly stressful, and it’s hard to know who to trust when it comes to legal advice. Most of the people a defendant encounters after arrest are not looking out for their best interests. But a defense attorney and their legal services can be the exception.
What Is Attorney-Client Privilege?
Attorney-client privilege is a court rule of evidence that says attorneys can’t be forced to reveal confidential communications with their clients.
Being able to communicate confidentially means the client can share openly with their attorney. This is important because an attorney needs all relevant information to build the best possible defense on behalf of the client.
What Is the Duty of Confidentiality?
Whereas attorney-client privilege is an evidentiary rule governing what sorts of attorney-client communications a lawyer can and cannot divulge to the court, the duty of confidentiality is a broader ethical rule.
According to the Model Rule of Professional Conduct 1.6(a), the ethical duty of confidentiality means that an attorney cannot reveal information about their legal representation of a client unless:
- The client gives informed consent;
- There is implied authorization to disclose information in order to carry out the representation; or
- An exception in the rules permits disclosure.
Under the exceptions to the duty of confidentiality, an attorney can reveal otherwise confidential information in order to:
- Prevent death or substantial bodily harm;
- Prevent the client from committing a crime or fraud;
- Comply with a court order or general law;
- Resolve conflicts of interest;
- Get advice on whether they are acting in compliance with the rules; and
- Defend themselves in a legal controversy with the client.
When Does Attorney-Client Privilege Begin?
Attorney-client privilege begins, or “attaches,” when an attorney begins representing a client. In criminal cases, this is usually when someone requests an attorney during police interrogation.
The actual talks between an attorney and their client become privileged communications once an attorney-client relationship has been formed. This relationship is from the perspective of the client, not the attorney. So, if a defendant thinks the privilege is in place, it is in place.
There are also “many conversations that do not implicate privileged conversations,” says Christie A. Moore, an attorney at Dentons Bingham Greenebaum in Louisville, Kentucky, who specializes in white-collar crime. Conversations that don’t implicate lawyer-client privilege include:
- Explaining what the charges are;
- Explaining the court processes;
- Explaining who the parties are; and
- Other background conversations that are factually based.
Is Attorney-Client Privilege Absolute?
No, the privilege has important limits. As a general rule, ensure your conversations with an attorney are in a private space. While you may want family or friends to know what is happening in your case, third parties can break the confidential nature of the attorney-client conversation and deny any attempt to invoke the privilege.
“In the white-collar crime area, for example, clients typically want to keep their spouse up to speed on what is happening,” says Moore. “And I encourage that, but it gets very tricky when they want to have their spouse in an attorney-client conversation. It’s one thing to talk logistics and what to expect from the justice system, but it’s another to talk strategy and provide advice to a client,” Moore says. “Prosecutors are looking for information from every possible avenue, and they will go to the spouse, the kids, or the neighbors.”
The other thing that can break the privilege is communications by a client that attempt to use the lawyer’s services to commit or cover up a crime or fraud. A lawyer cannot aid criminal actions; they are obligated to bring this type of communication to the court. This often means an attorney will remove themselves as counsel based on ethical obligations to the court.
Moore says it comes down to “respecting the cultures and relationships of clients, but at the same time making it clear that attorneys need to communicate with their clients without risking the attorney-client privilege… It’s complicated because the initial thought is that everything you talk about with your attorney is privileged information, but it’s not. The wisdom of practicing law is when you realize the difference,” Moore says.
Find an Experienced Attorney
Be sure to hire a reputable and experienced attorney to help you in any court proceeding—be it your state’s supreme court, circuit court, or district court. For more information on this legal area and the practice of law, see our overview of criminal defense.
Additional Criminal Defense articles
- What is Criminal Law?
- Lying About Your Age Online and on Social Media: Is It Legal?
- Driving Barefoot: Is It Legal?
- Private Gun Sales: Are They Legal?
- When Should I Hire a Criminal Defense Attorney?
- How To Pay For a Criminal Defense Attorney
- What Is The Difference Between Civil and Criminal Law?
- What Are the Different Types of Criminal Defense Attorneys?
- How To Choose the Right Criminal Defense Attorney for You
- Can Your DNA Link You to Crimes You Didn’t Commit?
- What's a Subpoena, and Why Have I Been Served?
- How Are Algorithms Used in the Criminal Justice System?
- An Overview on Assault and Battery Law
State Criminal Defense articles
Find top lawyers with confidence
The Super Lawyers patented selection process is peer influenced and research driven, selecting the top 5% of attorneys to the Super Lawyers lists each year. We know lawyers and make it easy to connect with them.Find a lawyer near you