Attorney-Client Privilege: Don’t be Afraid to Share

handshakeDo you have information regarding your case that you’re hesitant to share? Are you afraid that this information might harm your case?

Attorney-client privilege directly addresses these concerns by limiting when and how your attorney can share information you’ve shared.

Remember, however, that for your attorney to best represent you, he or she must know all the details of your case.

Understanding the attorney-client privilege

Reviewing these key terms below can help you understand the attorney-client privilege.

  • Attorney: An individual authorized to practice law in your specific state and nation
  • Client: An individual, organization, or public officer who has sough an attorney’s legal advice
  • Confidentiality: Information (pertaining to the client’s case) shared by the client with the attorney, understood to be private unless the client gives informed consent
  • Informed consent: This is when the client is informed of the consequences of a specific course of action and decides to take it, even after other alternatives have been explained by the attorney. An attorney is only allowed to disclose information if the client has given informed consent.

So what is the attorney-client privilege?

  • Attorney-client privilege means the information you share with your attorney will stay confidential. This privilege encourages honest and open communication between the attorney and client. It ensures you are represented to the attorney’s best abilities.

This privilege also means that your attorney cannot be called as a witness to provide evidence against you. He or she cannot talk about the case with anyone besides you and the legal team. Any information referring to your and your case remains confidential.

Under the Work Product Doctrine, an attorney’s notes, documents, and thoughts are protected against investigation from the opposing side.

Information that does not relate to the case is not protected. The information you share with your attorney must be for the purpose of receiving legal representation to be protected. Also, the information is not protected if it can be found out through another source.

If you speak about your case to another person who is not legal counsel, they may testify in court about the information. If you speak about your case with your attorney in public, where someone might overhear, that information is not protected. Someone who overheard the conversation can testify in court. When you share information with your attorney, make sure you are in a private setting.

The attorney-client privilege is timeless, even after the death of the client. Information shared by the client is only to be used by the attorney to offer legal advice that will aid the client in their case.

Exceptions to the privilege (vary slightly from state to state):

  • If you share information with your attorney that includes a future crime or fraud, they may share this information.
    • Example: If you tell your attorney that you plan to rob a bank, the attorney is permitted to report you. Information about plans to break the law is exempt from attorney-client privilege. Attorney-client privilege only applies for crimes or frauds that are currently in question when you received your attorney.
  • If you die and those close to you begin to make different claims on your will and your attorney has information related to this specifically, he or she might release the information.
    • Example: If you own several homes, and even if it is clearly defined in your will whom they go to, your beneficiaries might petition it. If you talked to your attorney about who gets what house and why you wanted it specifically that way, they may share this information.
  • If the attorney and/or client commit a breach of duty.
    • Example: If your attorney tells you to invest in a company that they have financial stake in, and the investment doesn’t aid in your legal case, they have violated breach of contract and that information is not privileged
  • If there is a relevant document your lawyer was an attesting witness to.
    • Example: Your attorney witnessed you signing a home renovation contract. The contractor later makes a claim that they were supposed to receive more compensation for their work. Your attorney might be called in to discuss the issue.
  • If your lawyer has joint clients and there is communication relevant to the common interest of the clients.
    • Example: If you and your friend get arrested for breaking and entering, and you have the same attorney, the information you share with the attorney can be shared with your friend if it helps both of you in the case. Or if you have separate attorneys, but you share information that could help the common interest of you and your friend, your attorney may share the information with your friend’s attorney.

Be honest, it helps your case

Being completely honest with your attorney from the beginning is the best course of action. A good attorney will have the education and years of experience that will guide them when it comes to how they will use the information. However, they can’t help you to the best of their abilities if you leave something out, if you alter the story, or if you flat out lie about a situation.

You may think that you have a solid case. Even if this is true, it can easily turn around if you are dishonest. For example, suppose you were driving across a four-way intersection (without traffic lights) when a driver from another side didn’t make a full stop and hits you while both of you are turning. You find out later that the driver behind the wheel was texting. You decide to sue for damages. It sounds like a straightforward story, right?

Well, how does the story change if you were given a ticket for texting and driving just a month ago, but you decide not to tell your attorney? The attorney for the other driver finds out this information and brings it up in court. Now, your credibility is brought into question. How does the judge or jury know that you weren’t texting and driving when the two cars collided? Your attorney will be caught off guard and may not know how to adequately defend you in that scenario. If you had told your attorney from the beginning, they would have had the chance to create a strong rebuttal.

If you are a true victim of an accident, you have nothing to hide. Be straightforward and spare no detail of the incident with your lawyer.

However, if you have made several past lawsuits or claims, be prepared for an uphill battle. The opposing attorney, judge, and jury might see you as an individual who is manipulating the legal system to receive money. Also, not all attorneys will approach these cases, because your credibility will already be in question. If you do not tell your attorney about these past cases and they find out later on, they might withdraw from your case.

Moral of the story: Be an honest person. Be sure to tell your attorney about past accidents, injuries, treatments, claims, etc.

What we do to help you

If you have a personal injury case that you would like to discuss with an attorney, stop by the law offices of Christensen & Hymas for a free consultation. We will be honest with you about whether you have a case.

If we decide to take your case, we will thoroughly review medical records, bills, and insurance policies. We will investigate by looking at police reports, interviewing witnesses, and collecting photographs. We will represent you by preparing for mediation or trial. We want to make sure that your interests are represented, and we will work hard to make sure that you receive the fair settlement you deserve.

Sources: NOLO, American Bar Association, Utah Courts

Photo copyright to  드림포유

Ken Christensen
Partner, Founder at Christensen & Hymas
Ken Christensen is the founding partner of Christensen & Hymas. He is an avid cyclist, loves baseball, and enjoys spending time with his family in the outdoors.

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