This is a big challenge for any attorney – making sure your client tells you everything and anything. Why? A good thorough defense attorney will investigate and run all kinds of internet, criminal, and claim checks to find out everything about our client. We can usually address and deal with the majority of issues, as long as our clients tell us about them. Otherwise, any secret that a client keeps from their attorney can be a liability, and experts say some of them are especially harmful.
As most of us know, at the beginning of any litigation, it is our responsibility to assess the totality of evidence and weigh risks so the client can manage its budget and expectations.
For all of us, the aim of the practice of law is to guide procedures that protect and advocate justice. Lawyers take an oath of office to protect the course of justice at all times, without fear, favor or bias. The purpose of the law courts, the backbone of the legal system, is first and foremost to establish whether the accused has actually done what they are alleged to have done. This is reflected by the fact that witnesses are required to take an oath that their testimony will be the whole truth and nothing but the truth. The principle of truth is therefore one of the most importance pillars of the law.
Regardless, tell the truth and tell all of your secrets. We have to keep the discussion confidential so nobody can use these statements against you. Only in very limited situations can we reveal these discussions, like when life is at stake. The attorney-client privilege is a rule that preserves the confidentiality of communications between lawyers and clients. Under that rule, attorneys may not divulge their clients’ secrets, nor may others force them to. The purpose of the privilege is to encourage clients to openly share information with their lawyers and to let lawyers provide effective representation.
The Client’s Privilege
Generally, the attorney-client privilege applies when:
- a client (actual or prospective) communicates with a lawyer regarding legal advice
- the lawyer is acting in a professional capacity (rather than, for example, as a friend), and
- the client intended the communications to be private and acted accordingly.
Lawyers may not reveal communications with clients (oral or written) that clients reasonably expect to remain private. A lawyer who has received a client’s confidences cannot repeat them to anyone outside the legal team without the client’s consent. 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 stays in effect even after the attorney-client relationship ends, and even after the client dies. In other words, the lawyer can never divulge the client’s secrets without the client’s permission, unless some kind of exception.
So what should you do? When speaking to an attorney about a legal matter, make sure to go over the scope of the attorney-client privilege and the duty of confidentiality. The lawyer should be able to advise you of the applicable law and address any pertinent areas not covered in this article.