The attorney-client privilege protects communications between a client and their lawyer. However, there are exceptions to attorney-client privilege, meaning not everything you say to your lawyer is always protected. Since waiving attorney-client privilege can expose highly confidential information, it’s important to understand what actions can lead to losing this protection.

What Is the Attorney-Client Privilege?

The attorney-client privilege is a legal rule that protects private communications between a lawyer and their client. The main purpose of the privilege is to encourage clients to disclose all the facts of the case to their attorney without fear that their conversations will be leaked. This allows the attorney to provide the best possible legal advice to the client.

The attorney-client privilege can cover almost any form of discourse:

• Written and oral communications
• A client’s actions, such as transferring documents
• Physical gestures, such as nods
• Electronic communications

The attorney-client privilege generally lasts indefinitely, meaning the conversations between the client and the attorney remain protected, even after the case ends or the attorney-client relationship is terminated.

Attorney-Client Privilege Exceptions

While conversations between a client and an attorney are protected by the client-attorney privilege, there are instances when the privilege is waived, either voluntarily or involuntarily. Below are some key exceptions you should know.

When There Is Presence of a Third Party

If a third party is present during a conversation between a client and their lawyer, then the attorney-client privilege is automatically waived. This means that if a third party comes into an office and sits in on a meeting, is copied on an email, or is otherwise included in some manner in a conversation, that conversation is not protected by the attorney-client privilege. Hence, it is crucial that clients are aware of who is present in a conversation before sharing sensitive information.

When the Client Intends to Commit Fraud or Crime in the Future

If a client confesses to their lawyer about a crime they committed in the past, they can use attorney-client privilege to prevent disclosure of this confession. Even if the lawyer discloses the information, the legal system cannot use it against the client.

However, if the client expresses their intention of committing a crime in the future, then the attorney-client privilege won’t protect them. In fact, the lawyer is ethically required to disclose the communication to prevent the crime.

The Client Voluntarily Waives the Privilege

The attorney-client privilege is the client’s privilege and not the attorney’s. That means the client is the only one who can waive the privilege voluntarily. There are situations where it is beneficial to waive the attorney-client privilege, such as when:

• Proving innocence
• Negotiating settlements
• Demonstrating good faith
• Clarifying legal advice

That said, it’s the attorney and not the client who will likely know when it’s appropriate to waive the attorney-client privilege. Therefore, it is important for clients to have faith in their attorneys when they suggest that waiving the privilege is the best option.

Mandatory Disclosure

In case the crime-fraud exception applies, then the attorney will be compelled to disclose the content of the communication in question. Besides the crime-fraud exception, there are some circumstances that ethically require lawyers to report communications between them and their clients. If they don’t report it, they could face disciplinary action and even criminal charges. Here are a few examples of such situations:

• Perjury: If the attorney is aware that a witness is going to give or has given perjured testimony, they must inform the court.
• Crucial evidence: If the client provides the attorney with a crucial piece of evidence, the attorney may have to hand it over to the court.
• Missing person: If the client tells the attorney the location of a missing witness or victim who is at risk of death, the attorney may have to disclose it.
• Threats. If the client threatens to harm someone, such as a witness, judge, or attorney, the lawyer may have to report the threat.
• Child Abuse or Elder Abuse Reporting: In some states, lawyers are required to report suspected child abuse or elder abuse cases.

Protecting Your Legal Conversations

Most states allow attorneys to disclose information received from a client that might prevent death, serious injury, or financial loss due to a crime or fraud. However, some aspects of the attorney-client privilege vary by jurisdiction.

Therefore, understanding these exceptions can help you protect your confidential legal discussions and avoid unintentionally waiving privilege. If you’re unsure about what’s protected, always consult your lawyer before sharing sensitive information.

John Mali Director of Media Relations

Director of Media Relations at AboutBoulder.com

john@aboutboulder.com