Understanding Attorney - Client Privilege

If you have retained a lawyer, or are in the process of seeking legal representation, you likely have heard the phrase “attorney and client privilege.”  Indeed, if you watch television or attend movies, you have heard the phrase attorney and client privilege with a great deal of regularity.  With that said, you may be wondering exactly what is meant by attorney - client privilege.

The History of Attorney and Client Privilege

In point of fact, attorney and client privilege is of long standing origin.  In its simplest, most fundamental terms attorney and client privilege is the concept under which the information a client shares with his lawyer must be kept in confidence by the lawyer.  The lawyer cannot be compelled and cannot on his or her own volition share this information with anyone else. 

The thought is that only through the attorney and client privilege can a lawyer truly and fully represent a client.  A client must feel as if he or she can share any and all vital information with his lawyer.  The attorney and client privilege makes the attorney’s office a safe zone in which a client can share even the most sensitive information.

Waiving Attorney and Client Privilege

When it comes to the attorney and client privilege, the attorney and client privilege belongs to the client.  In other words only the client and not the lawyer can waive the attorney and client privilege.  Should a client choose to do so, he or she can elect to forgo the attorney and client privilege and share information that he or she has shared with the lawyer.

The attorney cannot waive attorney and client privilege.  The privilege does not belong to the lawyer and it is not within his or her rights and ability to raise that privilege.

Breaking Attorney and Client Privilege

There are a number of instances in which the attorney and client privilege can be broken -- or in which is might be determined that it does not exist.

By way of an example, if a client shares confidential information with a lawyer in the presence of a third party not affiliated with the attorney’s office or staff, it likely will be concluded that no attorney and client privilege exists.  The communication between the lawyer and the client must be made in a confidential setting -- literally between the lawyer and the client (and actual members of that lawyer’s staff).

In addition, if a client provides confidential information to his lawyer and then turns around and shares that information with other people -- that information can be used against the client.  The information can be collected from the third parties and it can then be used against the client who will not be able to claim protection under the attorney and client privilege.