J. Cogburn Car Accident and Personal Injury Lawyers | July 3, 2024 | Personal Injury
Attorney-client privilege is a legal concept with ancient roots that long predate the foundation of the United States. Its purpose is to encourage clients to communicate honestly and candidly with their attorneys. Attorney-client privilege is designed to allow personal injury attorneys (and any kind of attorneys) to effectively represent their clients so that justice will ultimately prevail.
Definition
Attorney-client privilege prevents your attorney from divulging any confidential information you share with them in the course of their representation.
How To Establish Attorney-Client Privilege
The following four facts must be present to trigger attorney-client privilege. The privilege applies to spoken, written, and digital communication.
- The existence of a lawyer-client relationship: You must have sought the services of a licensed lawyer or set up a consultation with one. The attorney must be acting in their professional legal capacity. A conversation in a bar probably won’t be enough, for example.
- You intend the communication to be confidential: You must not knowingly communicate in the presence of third parties except other lawyers working on your case.
- You are seeking legal advice: Your communication must relate to legal advice or representation. The privilege does not cover conversations about mutual hobbies, your unrelated personal life, etc.
- You have not waived the privilege: See below for an explanation of waiver. In any case, it’s in your best interest to attempt to keep your communications with your attorney confidential.
Unless an exception applies, whatever you say to your lawyer that meets the foregoing conditions is privileged communication.
Attorney-Client Privilege Exceptions
The attorney-client privilege is not absolute. Below are descriptions of several major exceptions.
Waiver
The privilege is yours to keep or discard at your pleasure. You can waive the privilege in several ways–you might give your lawyer permission to reveal a certain communication, for example.
Even in this case, however, your waiver extends only to communications you specifically authorize your lawyer to reveal.
Implied waiver
Your lawyer can share information about your case with other members of the same firm without your specific permission unless you forbid it. These lawyers can use the information only to the extent necessary to further the lawyer’s representation.
Negligent Waiver
Suppose you speak so loudly with your lawyer that others can overhear you. You might thereby forfeit attorney-client privilege with respect to an eavesdropper if you spoke so loudly that it calls into question whether your expectation of privacy was reasonable.
However, even if this happens, your lawyer is still bound by their ethical duty of confidentiality (see below) and cannot reveal your confidences. Only the eavesdropper can.
Corporate Attorneys
Some attorneys represent corporations. Just because an attorney represents a corporation doesn’t mean they represent any specific individual within the corporation, even the CEO. Since the privilege belongs to the client, and since the client is the corporation (a fictional entity), it is the corporation that owns the privilege.
A corporate employee, including the CEO, cannot use the privilege to protect their personal interests, but only to the extent necessary to protect the corporation’s best interests. Nevada courts have further refined attorney-client privilege in the corporate context.
Joint Representation
Sometimes, lawyers represent more than one client at the same time. If so, communications are not confidential between two jointly-represented clients. They are still confidential with respect to the rest of the world. If the two clients’ interests become adverse to each other, one client cannot use attorney-client privilege as a shield against a legal action by the other client.
Future Crime or Fraud
If a client tells their lawyer, “I killed Susie,” they can assert attorney-client privilege to prevent disclosure of this confession. Even if the lawyer discloses it, the legal system cannot use it against the client.
If, however, they tell their lawyer, “I’m going to kill Susie”, attorney-client privilege does not protect them. In fact, the lawyer has an ethical obligation to reveal the communication to prevent the crime. The same applies to fraud that does not constitute a crime.
The Client’s Death (Sometimes)
Even your death does not necessarily operate as a waiver of attorney-client privilege. A major exception applies during certain probate proceedings, for example.
For example, a lawyer might legally reveal otherwise confidential communications with a now-deceased client to establish the true meaning of ambiguous wording contained in the client’s last will and testament.
Physical Evidence
For example, you cannot keep a gun out of evidence by giving it to your lawyer.
Facts
The attorney-client privilege protects communications, not the facts that are the subject of the communications.
Prison Phones
Prisons usually monitor prison phone lines, If they notify you of the monitoring, you have no reasonable expectation of privacy. Consequently, attorney-client privilege might not apply. It does apply, however, if the prison has assured you of confidentiality.
Initial Consultations (Possibly)
Attorney-client privilege generally applies to initial consultations even if you don’t end up hiring the lawyer. Just to be on the safe side, reconfirm confidentiality with the attorney – and in writing if possible. This helps confirm your reasonable expectation of privacy
Related Concept: Attorney-Client Confidentiality
Lawyer-client confidentiality is a lawyer’s ethical obligation to keep all information related to a client’s case secret unless the client gives informed consent or an exception applies. It often applies even when attorney-client privilege doesn’t.
Attorney-client privilege is a subset of attorney-client confidentiality. All privileged communications are confidential (and therefore covered by attorney-client confidentiality), but not all confidential information is privileged.
Speak Freely With Your Attorney
Don’t be afraid to speak your mind with your attorney, secure in the knowledge that attorney-client privilege protects your confidentiality. A well-informed attorney can help you in far more ways than an ill-informed attorney can.
If you believe you might have a personal injury claim (anything from a car accident claim to a dog bite claim), schedule a free consultation with a personal injury lawyer ASAP. Take heart, as your personal injury claim might be worth more than you think.
Contact the Personal Injury Lawyers from J. Cogburn Car Accidents and Personal Injury Lawyers for Legal Help Today
For more information, please contact our Personal Injury attorneys at J. Cogburn Car Accidents and Personal Injury Lawyers to schedule a free consultation today.
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J. Cogburn Car Accident and Personal Injury Lawyers Las Vegas
2300 W Sahara Ave Suite 800-816, Las Vegas, NV 89102
(702) 996-4786
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2580 St Rose Pkwy Suite 330, Henderson, NV 89074
(702) 541-9766
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