Attorney-client privilege is one of the oldest legal concepts in existence, going back at least as far as the ancient Romans. It was firmly embedded in the common law legal system, of which US law is a branch, by the dawn of the 17th century.
Attorney-client privilege is not just an ivory tower concept, however. It could be very relevant to you if you have a legal issue that you need to resolve.
Scope of the Privilege
So what, exactly, is attorney-client privilege? It is a rule of evidence that stops anyone from using your confidential communications with your attorney (or representatives of either of you) against you. Attorney-client privilege is limited to information about your case, but it includes both spoken and written material.
Pursuant to the privilege, your attorney can refuse to reveal any covered information, even as a witness under oath. Even if your attorney “spills the beans,” the court can strike it from the court record or even declare a mistrial. Under most circumstances, a court will also reject the testimony of a third-party eavesdropper.
The Legal Elements of Attorney-Client Privilege
To establish the existence of attorney-client privilege, you have to prove the following facts:
- You sought legal advice from the attorney in their professional capacity;
- You spoke on the assumption of confidentiality; and
- You made reasonable efforts to preserve confidentiality.
Keep in mind that there are exceptions to attorney-client privilege (see below).
Attorney-Client Privilege Exceptions
The following are the main exceptions to attorney-client privilege.
Waiver
You, and only you, can waive attorney-client privilege. It belongs to you, and you can do what you want with it. Your attorney cannot waive it, and neither can anybody else.
Colleagues (Implied Waiver)
Your attorney is entitled to share information with colleagues at their law firm unless you tell them not to. The colleagues can use the information solely to further the firm’s representation in your case.
Corporate Attorney
Corporations are fictional legal entities. In other words, they don’t actually exist; it’s just that the economy benefits when we pretend that they do exist. Because corporations don’t actually exist, but people do, an attorney who represents “the corporation” does not represent any particular individual within it – even the CEO.
Therefore, attorney-client confidentiality does not attach to conversations between a corporate employee and an attorney for the corporation.
Another aspect of corporate law is the fact that under certain circumstances, the shareholders can breach the attorney-client privilege held by the corporation. They can thereby force the attorney to reveal information that would otherwise be subject to privilege in favor of the corporation.
Joint Representation
In rare cases, an attorney might represent two parties at the same time. This is usually when the parties’ interests are not adverse to each other, and they are not anticipated to become adverse. In any case, a joint client cannot invoke attorney-client privilege to gain an advantage over another joint client.
Future Fraud or Crime
You do not enjoy attorney-client privilege by telling your attorney, “I plan to bribe one of the jurors.” Likewise, you do not enjoy the privilege if you say to your attorney, “I plan to murder one of the witnesses against me tomorrow night.”
Your attorney can (and must) break confidentiality to the extent necessary to prevent the crime from occurring.
Your Death
Most of the time, your secrets die with you. That is, your attorney is bound to keep your secrets even after you’re in the grave. There are exceptions, however. Suppose, for example, your attorney wrote your will, you die, and a dispute erupts over what you meant by an ambiguous phrase. Your attorney can probably testify about your true intentions as expressed to them confidentially.
Physical Evidence
You can’t use attorney-client privilege to conceal the existence of a gun you gave your attorney to hide.
Dispute Between You and Your Attorney
If you get into a dispute with your attorney over, say, fees owed or legal malpractice, you cannot use attorney-client privilege to deprive your attorney of the right to reveal facts that might help them defend themself against your allegation.
Facts
If you admit to your attorney, “I killed Sara,” your confession to your attorney is confidential. The fact that you killed Sara, however, is not confidential. It can still be used against you.
Failure To Treat the Information as Confidential
Your communications are confidential as long you act like you intend them to be. If you speak too loudly, the information you reveal might lose its confidential status if an eavesdropper overhears it – but only with respect to that particular person.
Gray Area: Free Initial Consultations
What’s the status of your communication if you reveal information in a free initial consultation, but end up not hiring the attorney? Court cases are mixed, so it’s best to confirm confidentiality with the attorney in advance.
Gray Area: Prison Phones
A prison usually monitors conversations on prison phones, even if you’re talking to your attorney. Court cases are mixed here too. To be on the safe side, don’t reveal anything confidential during such conversations.
Consequences of Violating Attorney-Client Privilege
In a sense, the attorney-client privilege is self-enforcing; even if someone opens their mouth, what they say cannot be used against you. There are two possible penalties.
- The attorney can be subject to professional discipline by the Illinois State Bar Association. This discipline might include disbarment.
- If you sue the attorney for legal malpractice, violation of attorney-client privilege might strengthen your case.
Remember that any violation of attorney-client privilege is also a violation of the attorney’s general duty of confidentiality, which the bar association is responsible for enforcing,
Talk to Your Attorney
Feel free to speak your mind to your attorney. If you run into an attorney you don’t feel you can trust, find another. Rest assured, however, that attorney-client privilege protects you even if your attorney does turn out to be untrustworthy.
If you have a personal injury claim, be aware that as long as your claim is reasonably strong, you don’t need to worry about money. Since most personal injury attorneys work on a contingency fee basis, you only pay legal fees if you win.
Even then, your bill doesn’t come due until your compensation money actually arrives. Act quickly to set up a free initial consultation with an experienced Chicago personal injury attorney.
Contact the Chicago Personal Injury Law Firm of Zayed Law Offices Personal Injury Attorneys for Help Today
For more information, please contact the experienced Chicago personal injury lawyers at Zayed Law Offices Personal Injury Attorneys today. We offer free consultations.
We proudly serve Cook County, Will County, Kendall County, and its surrounding areas:
Zayed Law Offices Personal Injury Attorneys – Chicago Office
10 S La Salle St STE 1230, Chicago, IL 60603
(312) 726-1616
Zayed Law Offices Personal Injury Attorneys – Joliet Office
195 Springfield Ave, Joliet, IL 60435
(815) 726-1616
