When Does Lawyer and Client Confidentiality Start?
Individuals can feel comfortable sharing very private information with lawyers because they rely on the protections of attorney client privilege. This privilege was created by lawmakers to assure that there can be open and honest communication between the attorney and the client. Without great communication, the attorney may not know how to best protect his or her clients in the best way possible.
How do you know whether you can actually share private information and that the attorney will actually keep it confidential? When is the right time to share that information? Can you feel comfortable in an initial consultation sharing every part of your legal troubles and know that the attorney will keep all of your information private?
The attorney client privilege is very powerful in its application. The attorney that you spoke to when discussing your legal concern cannot voluntarily disclose information disclosed in confidence for the purpose of seeking legal counsel (confidentiality). Nor can the attorney be compelled to disclose those communications (privilege). In addition, the client cannot be forced to testify in court regarding any statements that were made to a lawyer for the purpose of seeking legal counsel.
When an Attorney-Client Relationship Begins
Before the privilege can be asserted, there must be an attorney-client relationship. Many assume that they are protected by the privilege when, in fact, no attorney-client relationship has actually been formed.
The confidentiality privilege can begin when the attorney and the client have agreed on the representation of the client. This privilege can also be asserted when a person has attempted to become a client of the attorney when the information was disclosed. However, it is not always clear when the attorney-client relationship has begun.
For example, if a person calls an attorney on the phone requesting specific information and in the course of the conversation that person discloses private information to the attorney, this conversation may be considered confidential. For there to be an actual attorney-client privilege, the client must have a “reasonable belief” that the attorney-client relationship exists.
The implied relationship may be evidenced by payment of fees to an attorney, the request for and receipt of legal advice, and the history of legal representation between the potential client and the attorney. The argument for an attorney-client relationship is further strengthened if there was a discussion of a potential course of action and a discussion of the future handling of the matter.
The client is the only person who can waive the privilege of confidentiality. The attorney does not have the option to waive the exception, so you can feel confident knowing that all statements made to an attorney are secure unless you say otherwise.
Exceptions to the Rule
Just like most legal rules, there are exceptions that could make the statements you make to an attorney no longer confidential. If, by chance, any of these exceptions apply to you, it is possible that the statements you make to your attorney could still be disclosed.
Waiver: The client has all the control on whether the information can be disclosed or not. If the client decides not disclose the information they can waive their right and disclose at will.
Others in Room: All statement made must be solely between the client and the attorney. If any other non-attorney listeners are in the room, the statements are presumed to be public and therefore no longer subject to the confidentiality privilege.
Crime or Fraud: Courts may also force an individual to disclose certain facts if the conversation was related to the intent to commit a fraud or a crime. The court simply will not allow an attorney to keep such information confidential so that other individuals can be kept safe from harm.
Fiduciary Duty: The privilege does not apply when an attorney is acting as a business advisor to a company and the company’s shareholders want to obtain that information.
This Privilege is for Your Protection
Attorney-client privilege is one of the most important principles in our legal system. Without this privilege, clients would not feel comfortable sharing important information to their attorney. Without free flowing communication between an attorney and a client an attorney would not be able to best protect his or her client.
At Parry & Pfau, we earn our client’s trust in many ways including by keeping all attorney-client information completely private. We take extensive measures to assure that our client’s private information is kept private.
Matt Pfau is an attorney and founding partner at the law firm H & P. Matt has a background in business consulting, estate planning, business start-ups and bankruptcy and is licensed to practice in both Nevada and California. A partner in the firm H & P, he can be reached at 702-912-4451 or matt@p2lawyers.com.
