Difference between revisions of "Ethics and Professional Responsibility"

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'''Scope and Application of the Attorney-Client Privilege'''
 
'''Scope and Application of the Attorney-Client Privilege'''
 
The five-part test is typically the starting point in a court's analysis of a claim for privilege.  
 
The five-part test is typically the starting point in a court's analysis of a claim for privilege.  
* The attorney/client privilege belongs only to the defendant and not to the defense lawyer.  As a result, the defendant may prevent the defense lawyer from divulging their communications but the defense lawyer has no power to prevent the defendant from choosing to waive the privilege and testifying in court, talking to the police, or otherwise sharing confidential attorney/client information with third parties not privy to the confidential discussions.  The defendant may waive  the attorney/client privilege expressly by his words or implicitly by his conduct, but the court will only find that the privilege has been waived if there is a clear indication that the defendant did not take steps to keep the communications confidential.  A defense lawyer's or a defendant's inadvertent disclosure of confidential information to a third party will not normally suffice to constitute waiver.  If a defendant decides against waiving the privilege, the defense lawyer may then assert the privilege on behalf of the defendant to shield both the defendant and the defense lawyer from having to divulge confidential information shared during their relationship.
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The attorney/client privilege belongs only to the defendant and not to the defense lawyer.  As a result, the defendant may prevent the defense lawyer from divulging their communications but the defense lawyer has no power to prevent the defendant from choosing to waive the privilege and testifying in court, talking to the police, or otherwise sharing confidential attorney/client information with third parties not privy to the confidential discussions.  The defendant may waive  the attorney/client privilege expressly by his words or implicitly by his conduct, but the court will only find that the privilege has been waived if there is a clear indication that the defendant did not take steps to keep the communications confidential.  A defense lawyer's or a defendant's inadvertent disclosure of confidential information to a third party will not normally suffice to constitute waiver.  If a defendant decides against waiving the privilege, the defense lawyer may then assert the privilege on behalf of the defendant to shield both the defendant and the defense lawyer from having to divulge confidential information shared during their relationship.
 
* The attorney/client privilege applies only to communications between the defense lawyer and the defendant.  However, the attorney/client privilege does extend beyond the immediate attorney/client relationship to include a defense lawyer's partners, associates, and office staff members (e.g., secretaries, file clerks, telephone operators, messengers, law clerks) who work with the defense lawyer in the ordinary course of their normal duties.  The presence of a third party who is not a member of the defense lawyer's firm typically will defeat a claim for privilege, even it that third person is a member of the defendant's family.  (In some cases, the privilege will not be waived if the third party can be shown to be reasonably necessary to aid the defendant's interests (for example, the appointed guardian for a minor)).
 
* The attorney/client privilege applies only to communications between the defense lawyer and the defendant.  However, the attorney/client privilege does extend beyond the immediate attorney/client relationship to include a defense lawyer's partners, associates, and office staff members (e.g., secretaries, file clerks, telephone operators, messengers, law clerks) who work with the defense lawyer in the ordinary course of their normal duties.  The presence of a third party who is not a member of the defense lawyer's firm typically will defeat a claim for privilege, even it that third person is a member of the defendant's family.  (In some cases, the privilege will not be waived if the third party can be shown to be reasonably necessary to aid the defendant's interests (for example, the appointed guardian for a minor)).
  

Revision as of 08:51, 8 April 2010