The relationship between an attorney and client should be held in high regard and built on a foundation of trust from both sides. This is crucial because it creates an environment for open discussion about legal situations without the client fearing that those conversations are going to be turned over to the public, opposing counsel, or the court. Just like any good relationship, you should know your responsibilities and boundaries as well as expectations for the other person. Attorney-client privilege and confidentiality may not be as cut and dry as one might think.
I’m Amanda Waltz, an Estate Planning and Probate Attorney from Northwestern Ohio. I’ve been practicing Probate Law since 2014 after receiving my Juris Doctorate from Capital University. You can learn more about me here.
What is Attorney-Client Privilege? How is Confidentiality Different?
In fact, “privilege” and “confidentiality” are not synonymous when it comes to the attorney-client relationship. Let’s start with that important distinction. All communication protected by attorney-client privilege is also protected by confidentiality. However, not all communication protected by confidentiality is protected by attorney-client privilege.
To clarify, confidentiality is an ethical obligation that prevents an attorney from voluntarily disclosing information about the client without the client’s expressed or implied consent. Attorney-client privilege is a legal assertion of privacy between the client and the attorney’s communication, so that privilege is held by the client.
Generally, attorney-client privilege is invoked when a third party is trying to compel information, such as the court. Whereas, confidentiality comes into play when the lawyer is asked to offer something voluntarily that may be covered by confidentiality.
With me so far?
When Attorney-Client Privilege Begins
Attorney-client Privilege occurs when there are five things present: (1.) The client (2.) communicates (3.) confidentially (4.) with an attorney (5.) to obtain legal advice.
Pretty simple. If you approach me in a private setting to seek legal advice, we enter into an attorney-client privileged relationship.
What is Protected (And Not Protected) Under Attorney-Client Privilege?
All types of communications between the attorney and client, whether oral or written, are protected under attorney-client privilege. That means emails, text messages, phone calls, letters, etc., would all be covered.
While the communications between the lawyer and client are protected, the actual facts are not covered under the attorney-client privilege. For example, let’s say you told your lawyer that you did indeed run that red light. Your admittance to your lawyer, that conversation you had, about running the red light is privileged. However, the actual action (did you run the red light?) is not covered because it relates to a fact.
Attorney-client privilege also does not protect documents that the client gives to the lawyer, like a bank statement for example. The reasoning for this is so that a person cannot launder documents through privilege by giving them to the attorney.
It’s important to note that generally, the attorney-client privilege does survive death. What a deceased person communicated with their attorney during consultations and in making their will are protected. However, if there are two or more beneficiaries that are fighting over the will, the court may compel testimony from the attorney regarding the intent of the decedent. That helps the court properly carry out the last wishes of the decedent.
While I don’t practice criminal law, I will also add that generally, a client’s identity is not privileged information, unless the client’s identity in itself is a communication. This typically applies to criminal defense situations, so that is why I prefaced it. It doesn’t typically pertain to my clients.
Under no circumstances may an attorney disclose evidence to the authorities anonymously. For example, in a criminal case again, if the attorney learned from a client where a dead body was located, they cannot reveal the information because it’s protected by both the duty of confidentiality and attorney-client privilege. Even if the lawyer were facing death threats from the victim’s family, they cannot divulge anything learned from the client.
4 Exceptions to Attorney-Client Privilege
There are four main types of exceptions pertaining to privilege. These are different from the client waiving privilege, which is explained more in the next section.
1. Crime or Fraud
If a person attempts to use a lawyer’s services and expertise to commit a crime or fraud, then attorney-client privilege never actually attaches.
This exception does not apply to a previous crime or fraud committed. Therefore, a person can seek an attorney for services to defend themselves for a past act. It’s about the intent of the person to use the lawyer’s knowledge to plot a future crime or fraud.
2. Joint Clients
The second exception is in the case of joint clients. This is one that I encounter frequently. For example, a husband and wife use the same lawyer for their estate planning, they are considered joint clients and the communication is privileged for both clients.
If there are any disagreements that arise between the joint clients, then the attorney must step down because of the responsibility of privileged information to both persons, and there are potential cross-suits that could happen. My joint clients sign a waiver that explains how I represent both of them and if one shares information, then asks me not to tell the other joint client, their privilege is lost and I can no longer represent either of them.
3. Advice of Counsel Defense
When a person cites the “advice of counsel” defense, the right to the attorney-client privilege is automatically waived as it relates to that advice. You may have heard of this term in a case involving Donald Trump regarding his campaign finances years ago. This exception would occur when the communications between the lawyer and client are being specifically scrutinized.
4. Lawyer Self-Defense
The final exception is lawyer self-defense. If a client files a complaint or lawsuit against the attorney, then the client waives the privilege of all communication with that attorney.
Waiving Attorney-Client Privilege and Confidentiality
The attorney-client privilege is destroyed if a client or attorney discloses information to a third party. And in this event, it’s a waiver of all information related to the same subject, there is no partial waiver of privilege.
There are accidental waivers, where privilege could be lost by the client or the lawyer accidentally disclosing privileged information. It depends on whether or not the client and/or attorney took the proper precautions to protect the information.
The client may also give permission to the attorney to disclose information. That waiver applies to all other information related to the same subject.
It’s the client’s privilege, but it’s the attorney’s responsibility to assert the privilege if they’re ever compelled or in any situation where they’re asked to provide confidential or privileged information. This is where you want to be able to trust your attorney.
A client may also waive confidentiality (remember, it is different from attorney-client privilege). It is common for a client to give consent to waive confidentiality if they would like the attorney to talk to their accountant, financial advisor, or children, to name a few examples.
Exceptions to Confidentiality
Here are some scenarios where the exceptions to the ethical duty of confidentiality, under the Ohio Ethical Rules, would apply:
- There may be an implied authority to disclose confidential information in order to carry out representation. For example, when working with Medicaid applications, it is an implied authority and the attorney is permitted to disclose medical information needed in order to complete the process.
- In order to prevent a reasonably certain injury.
- To prevent a client from committing fraud or crime.
- To prevent or mitigate any harm done by a client.
- To secure compliance advice. (Attorneys in Ohio can call the ethics bar to confirm the rules are followed properly. If this is needed, the attorney may disclose necessary confidential information to obtain adequate advice.)
- Litigation with a client over-representation. If a client were to sue the attorney over a fee, allegations related to representation, or defending from the charges, for example, confidentiality will be waived in order to try the case.
- Compliance with other laws and court orders. An attorney should assert the privilege for confidential information to the extent required, but must still comply with other laws and court orders.
To recap, the attorney-client privilege really comes into play when there’s a third party trying to compel the information. Generally, this occurs in the court system because it’s a legal doctrine. Most of what I handle falls under confidentiality, which is an ethical obligation. This is still held in high regard and the attorney should not disclose the information. The two can often get confused because a lot of the rules and requirements fall into similar obligations.