Attorney-Client Privilege

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Background

In order for the defense attorney to form a bond of trust with the client, the defense attorney must maintain confidential all communications with the client. In order to strengthen the confidential nature of the attorney-client privilege, some courts have fashioned an attorney-client privilege that shields the attorney from being forced to testify against confidential communications with their client. Without this rule, a prosecutor could easily convert a defense attorney into a witness.

Elements of the Attorney-Client Privilege

The essential elements of the Attorney-Client Privilege may vary between jurisdictions. Generally the following elements are required:

  1. The individual who claims the privilege is either: 1) a client of the defense attorney or 2) engaged in confidential communications in order to become a client of the defense attorney.
  2. The individual to whom the client communicated was an attorney or an agent of the attorney.
  3. The attorney was acting in their legal capacity
  4. The communication was for the purpose of securing legal advice. Attorney-Fees are not considered "legal advice".

The attorney-client privilege may be broken if:

  • Waiver - The communication was made in the presence of a third party in such a way that suggests the communication was not intended to be confidential.
  • Crime Exception - Some jurisdictions hold that a confidential communication is not covered if the communication was made for the purpose of commiting another wrong.
    • Prevention of Death or Substantial Bodily Harm - The defense attorney may be required to disclose communications if doing so would prevent reasonably certain death or substantial bodily harm.
    • Crime or Fraud - The defense attorney may be required to disclose communication if 1) defendant is using the defense attorney's advice to 2) commit a future crime substantially certain to result in substantial economic injury.
    • Mitigation or Repair - The defense attorney may be required to disclose confidential communication if 1) doing so would mitigate or rectify ongoing economic injury and 2) the client is using defense attorney's services to further the harm.
  • Waiver - The privilege may be waived by the defendant through any other means of disclosure.
  • Self-Defense - The attorney-client privilege will not apply in cases where the criminal defense attorney is being sued by the defendant for ineffective assistance of counsel, malpractice or any other dispute between the parties that requires disclosure of otherwise confidential communications.

Duties to Former Clients

The duty of confidential communication continues beyond the attorney-client relationship. The same duties apply to former clients as do to current clients. An attorney should not take a case where doing so would create a conflict of interest with the former client. A conflict would arise if the defense attorney represented another client on the same or a substantially related matter in which the clients interest is materially adverse to interest of former client. A former client may waive the conflict through informed, written consent.

Work Product

Examples

United States