In that sense, the privilege is the client's, not the lawyer's—the client can decide to forfeit (or waive) the privilege, but the lawyer cannot. The privilege generally stays in effect even after the attorney-client relationship ends, and even after the client dies.
An attorney-client relationship generally doesn't form until the lawyer and client agree to it. But the attorney-client privilege protects some communications made before the prospective client hires the attorney, and even some where there's never any hire. (For all kinds of information about lawyer-client relationships, ...
So, it's a good idea to start any communication with an attorney who doesn't represent you by confirming with him or her that your communications will be privileged. Talk to a Lawyer.
Attorney-client privilege refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret.
For more on the attorney-client privilege, see this Cornell Law Review article, this Fordham Law Review article, and this Pepperdine Law Review article .
The attorney-client privilege applies in limited circumstances, in particular: Requests for legal advice from a client to an attorney. Requests for information from an attorney for information needed to formulate or provide legal advice. The legal advice is actually given by the attorney.
Legal advice is broader than just litigation-related communications, i.e., it covers all legal advice including transactional and regulatory. Business advice, however, is never privileged, and – for in-house counsel in particular – the line between the two can appear blurry.
A third party is generally anyone other than (a) the company’s lawyers, (b) employees of the company with a “need to know,” (c) certain agents of the company and the attorney, and (d) any parties with whom the company has a joint defense or common interest agreement.
If you get it wrong, the privilege may be lost. For example, sharing privileged communications with third party contractors/consultants , public relations firms, insurance brokers, and other third parties may destroy the privilege. Whether or not this so depends on the facts and the laws of any particular state.
In some jurisdictions, the self-critical analysis privilege is a qualified privilege that encourages companies to honestly evaluate themselves in light of some problem or incident yet protects the company from that report or analysis from being used against it in litigation.
Your lawyer cannot just share information or keep it private as he or she sees fit. Doing so would undermine the sharing of information between a client and his or her attorney.
If the crime-fraud exception is applicable, a lawyer may be forced to disclose the contents of the relevant communication. If a lawyer does not produce the requested materials, he or she risks disciplinary sanctions and criminal charges.
If you need legal representation that unwaveringly preserves your rights, contact my office for a free case strategy session. I will help guide the discussion regarding the facts of your case in the most ethical and effective possible manner.
Is it a good idea to have a relative or friend sit in on your meeting with your lawyer?
Despite the general rule, there's an exception in most states: In general, when a third person is present, the attorney-client privilege continues to apply if that third person is there in order to aid the cause. Put more specifically, the third person must be present while fulfilling a role that furthers the defendant's legal representation.
A defendant might very well expect confidentiality when talking with a lawyer in front of a loved one. And it may be unlikely that the prosecution ever finds out about the meeting or calls the loved one to testify.
The law on the attorney-client privilege is complex and can vary in subtle ways from one state to another. That's why you should rely on a lawyer for advice—and a full explanation of the law.