Attorney-Client Privilege and Client Confidentiality

One of the most important legal protections you receive when you hire – or even consult with – a lawyer is that of attorney-client privilege. This is a special right that allows you to say anything you want to an attorney without fear of it being disclosed to a third party, including a competitor, the government or even the police.

However, like most rules in law, there are exceptions. Learn how the attorney-client privilege works in California to fully understand when you are and are not speaking to an attorney in confidence.

What Is Attorney-Client Privilege?

California Evidence Code Section 954, as well as legal standards established by federal courts and the American Bar Association, state that when a client consults with an attorney for the purpose of seeking legal advice, anything said between the two parties is held in the strictest confidence. This means the attorney cannot disclose anything the client says to third parties. Five things must be true for attorney-client privilege to exist.

  1. The two parties must have an attorney-client relationship. An attorney-client relationship exists even when a person is consulting an attorney for legal advice and has not yet retained the attorney. An attorney-client relationship could also exist with a hired representative, such as a paralegal.
  2. The communication must have been made in confidence. The communication must have existed between the attorney and the client only; if any third party was involved, such as someone else cc’d on an email to an attorney, this automatically waives the attorney-client privilege.
  3. The communication must have been made for the purpose of seeking legal advice. Simply speaking to an attorney about a matter does not automatically create attorney-client privilege. The matter must be related to the client seeking legal advice. Business advice from a lawyer, for instance, will not be privileged.

When enacted, the attorney-client privilege protects virtually all forms of communication between a client and legal counsel, including in-person conversations, phone calls, emails and text messages. Thus, for the most part, when you communicate with an attorney for legal purposes in California, you can rest assured the lawyer cannot repeat anything you say. Make sure, however, that an exception does not apply to your case.

When Is the Attorney-Client Privilege Waived?

The purpose of attorney-client privilege is to allow a person to say anything he or she wants, including disclosing secrets, about a case without fear of anyone else finding out. This rule encourages open communication between an attorney and his or her client, allowing the attorney to provide more accurate and effective legal counsel.

There are scenarios, however, in which a lawyer can disclose information he or she received from a client. An exception to the rule could mean the attorney is not bound to client confidentiality. One exception is if a client is seeking advice on how to further a crime being committed. In this case, the attorney could go to the police without breaching the attorney-client privilege. If the client has already committed a crime and is seeking defense counsel, however, the attorney cannot disclose the information.

Another exception is if you tell your attorney you intend to commit fraud during your lawsuit. If you disclose your plans to submit false documents or testimony, for example, attorney-client privilege will not protect you. The courts can order your lawyer to reveal information related to ongoing crimes and fraud.

If a corporation seeks legal advice, this may also not be subject to attorney-client privilege. In this case, the corporation’s shareholders will bear the right to access privileged information. Finally, the common interest exception states that if two parties have the same attorney during a single legal matter, neither can assert the attorney-client privilege against the other party in a second case.

For more information about the attorney-client privilege and how it may apply to your case, speak to a personal injury lawyer in Sacramento.