A client’s relationship with a lawyer is unique. Lawyers and clients must be able to communicate freely for clients to receive the help they need, and the attorney-client privilege and the work-product doctrine make this possible.
The attorney-client privilege protects confidential information learned by an attorney during client representation. The work-product doctrine protects the thoughts and materials prepared, and communications made, when lawyers and clients think litigation is possible. This article explains the basics of both protections, and seeks to teach clients how to avoid common pitfalls.
The attorney–client privilege is found at Texas Rule of Evidence 503, and its application in federal courts is governed by Federal Rule of Evidence 501.
The purpose of the attorney– client privilege is to encourage free discussion between a lawyer and client.
If lawyers and clients cannot talk to each other, the lawyer will not be fully informed and the client cannot get the full benefit of the legal system. The privilege also helps clients feel comfortable seeking early legal assistance.
The privilege protects not only information exchanged between a lawyer and client, but also includes persons authorized to act on their behalf (called “agents”). Communicating confidential information to a lawyer’s legal assistant, for example, is likely still privileged. Also, a formal attorney-client relationship is not always required. The protection extends to potential clients who consult a lawyer to potentially hire that lawyer for legal work, even if the lawyer is not ultimately hired.
For the privilege to apply, the communication must be made for the purpose of helping a lawyer provide legal services to the client. Communicating with a lawyer for any other purpose such as asking for public relations advice for example may not be privileged. Finally, a communication must be confidential, meaning it is not intended to be disclosed to others beyond the lawyer and client. If someone other than the lawyer and the client are present when the communication is made even to family members, friends, etc. the client risks waiving the privilege.
In criminal cases, the privilege applies to more than just communications. It applies more broadly to any other fact the lawyer or the lawyer’s representative learns because of the attorney–client relationship. Also, in certain, limited circumstances an attorney must disclose confidential client information to prevent a crime or fraudulent act where the result is likely death or substantial bodily harm to another person. When death or substantial bodily harm is not likely, the lawyer may (but is not required to) reveal confidential information to prevent the client from committing the criminal or fraudulent act. The lawyer also may reveal confidential information if necessary to fix the consequences of a client’s prior criminal or fraudulent act if the lawyer’s services were used in committing that act.
The privilege belongs to the client. Unless an exception applies, the client may refuse to disclose the information in a court proceeding and may prevent the lawyer from doing so. Exceptions include communications relating to the death of a client or disputes between the lawyer and client, among others. Clients should be very hesitant to reveal privileged information and should almost always consult an attorney before doing so.
The full article contains information on the Attorney-Client Privilege as well as:
- The Work Product Doctrine
- How the Attorney-Client Privilege and the Work-Product doctrine are different and
- Common Mistakes and Pitfalls make when working with their attorney.