Thomas C. Grajek | February 20, 2025 | Personal Injury
Attorney-client privilege has been around longer than nearly any other concept in modern law. In fact, its origin dates all the way back to the ancient Romans. The history of attorney-client privilege is subject to much research. This concept is at the cornerstone of much of today’s legal representation.
Being able to have open and honest conversations with your attorney is crucial. If your attorney is to represent you to the best of their ability, you need to be able to trust them with all the facts of your case. If you have a lawyer, it is very likely that Attorney-client privilege will come into play.
What is Attorney-Client Privilege?
Attorney-client privilege is a rule of evidence. It protects your confidential communications with your attorney. Your attorney cannot be called to testify against you based on information you share with them related to your case. Even if your attorney is called as a witness and placed under oath, they can decline to disclose these protected communications.
Attorney-client privilege extends to both written and verbal communications. In some cases, gestures, such as a head nod, may even be considered protected communication. If your lawyer does disclose privileged communications, they may be reprimanded.
It is important to note that not every conversation or discussion with an attorney is privileged. There are specific criteria that must be met for the privilege to apply. Similarly, there are some notable exceptions that are excluded from the protection of attorney-client privilege.
When Does Attorney-Client Privilege Apply?
For attorney-client privilege to apply, there must first be an attorney-client relationship. Generally, this relationship begins when the attorney begins their representation of the client. For example, your free consultation with a car accident attorney may be confidential, but it might not be protected by attorney-client privilege if you have not yet hired the attorney to represent you.
The Florida Bar notes that the “ethical duty of confidentiality is much broader than attorney-client privilege.” Once the attorney-client relationship has started, attorney-client privilege exists when:
- You are seeking legal advice from your lawyer
- You are speaking under the assumption of confidentiality
- You take reasonable efforts to preserve the confidentiality
If you can prove all three of the elements above, it is likely that your communication with your attorney will be deemed as privileged.
What Are the Exceptions to Attorney-Client Privilege?
Even when you are seeking legal advice, not all of your communications with your lawyer are privileged. There are several notable exceptions to this rule. If your communication falls under one of these exceptions, then it may become discoverable:
Waiver or Implied Waiver
You, and no one else, have the ability to waive attorney-client privilege. Your attorney cannot choose whether to waive this privilege and disclose confidential information. However, if you give permission for the information to be disclosed, then your attorney is free to share it.
An implied waiver may apply when there are multiple attorneys at a law firm working on your case. For instance, imagine that you share confidential information about your truck accident or other type of personal injury case with your lawyer. That lawyer has an implied waiver to share that information with other attorneys in the firm who are working to protect your interests in that case.
Lawyer in the Room
Some clients may have meetings or discussions with others that they wish to protect. For this reason, they will invite their attorney to the meeting thinking that the communications will be protected. However, simply having a lawyer in the room does not make the information shared in the meeting protected, especially when the meeting has nothing to do with legal advice.
Third-Party Present
Inviting a third party to a meeting with your attorney is usually not a good idea. This could cause you to lose your attorney-client privilege with anything said during the meeting. Even though your attorney may not be able to share the information, the third party could be compelled to testify about what was said.
Underlying Facts
While the details of your conversation with your lawyer may be privileged, the underlying facts are not. If those facts are discoverable through other means, you cannot prevent them from being discovered simply because you talked to your attorney about them.
Consultation
The mere fact that you had a consultation with a lawyer is not privileged. You or your attorney could even be compelled to disclose the general subject matter of the consultation. However, any specific details you shared or advice you received at the consultation are likely to be protected – especially if you hired a lawyer.
Death
In many situations, attorney-client privilege continues to exist even beyond your death. However, there are some situations in which it could be waived after your death. For instance, an attorney who drafted your will may be allowed to testify about your intentions in the event of a dispute.
Threat of Future Crime
If you disclose information to your attorney about plans to commit a future crime, they have the ability to break the privilege. For example, if you tell your attorney that you plan to murder a key witness in your criminal trial, attorney-client privilege will not apply. Your lawyer must take reasonable steps to stop the crime from happening, even if that means disclosing the information you shared.
What Should I Do if I’m Unsure Whether My Communications Are Protected?
There may be times when you are unsure of whether your discussions with your lawyer are privileged. Before sharing confidential information, you can take some precautionary steps. You should:
- Take reasonable steps to protect your confidentiality
- Avoid talking too loudly so that others may hear
- Do not share confidential information if others are in the room
- Ask your lawyer for clarification
When in doubt, ask your lawyer. If you are unsure about the status of your communications, ask your lawyer whether they will be privileged. Failure to take proper precautions could result in your conversations being disclosed.
Penalties for Violating Attorney-Client Privilege
If your lawyer violates attorney-client privilege, they could face severe penalties. The Florida Bar could impose penalties, such as:
- Private reprimand
- Public reprimand
- Suspension
- Disbarment
The punishment issued typically depends on the facts of the situation as well as any previous misconduct by the lawyer. In some cases, you might even be entitled to sue the lawyer for legal malpractice. Remember that while attorney-client privilege has important applicability in the legal system, it does not apply to all conversations with a lawyer.
Contact the Lakeland Personal Injury Law Firm of Thomas C. Grajek, Attorney At Law Today For Help
For more information, please contact the Lakeland and New Port Richey Personal Injury law firm at the nearest location to schedule a free consultation today.
We serve Polk County, Pasco County, and its surrounding areas:
Thomas C. Grajek, Attorney At Law Lakeland
2306 Florida Ave S
Lakeland, FL 33803
(863) 999-9000