Attorney-client privilege is a legal privilege that keeps communications between an attorney and his client private. One of the oldest recognized privileges for confidential communications, the attorney-client privilege encourages clients to make full disclosures to their attorneys, who are then better able to offer legal advice and provide more effective representation.
There are certain elements that must be present in order for the attorney-client privilege to be established. These include:
- The holder of the privilege must be (or become) a client.
- The person to whom the privileged communication is made must be a member of the bar of a court, or the subordinate of a member.
- The communication must be made to someone acting as an attorney for the purpose of securing legal advice.
- In most jurisdictions, there are also a number of exceptions to the privilege, such as when:
- The communication was made in the presence of individuals other than attorney or client, or was disclosed to such individuals.
- The communication was made for the purpose of committing a crime or a tort.
- The client voluntarily waived the privilege.
Although a client may elect to waive the attorney-client privilege, an attorney cannot.
Attorney-Client Privilege in a Personal Injury Case
A personal injury attorney’s main responsibility is to give potential clients candid legal advice regarding their case, and to do so, they need clients to be honest with them and provide all the details of their injury. Similarly, personal injury clients need to feel comfortable enough to make full disclosure about the accident to their attorneys. Attorney-client privilege protects such conversations and allows clients to be completely honest and open with their lawyers without worrying that the information they provide might be used against them later in court.
But it is almost never a good idea for a client to speak with his attorney in a public place, including via a mobile device. Public conversations can easily be overheard, and those who eavesdrop might potentially be called as witnesses. Regardless of who hears or learns about a confidential communication, a lawyer is not required to repeat it.
Effective personal injury attorneys must not only understand the importance of the attorney-client privilege, but also must fulfill their duty to explain the importance of confidentiality to their clients.
Image by Hilary Dotson