January 25, 2022 | Criminal Defense

A client needs to feel secure when discussing a matter with a criminal defense attorney. They need to know that the information they share with the attorney will not be disclosed to a third party or used against them. Confidentiality is even more essential between a criminal defense attorney and a client.

Why should a client feel secure about disclosing information to a criminal defense lawyer? They can rely on the protection of attorney-client privilege. This privilege prevents confidential or sensitive information from being disclosed to other parties.

What is Attorney-Client Privilege?

Privilege may apply to evidence used in a civil or criminal court matter. When evidence is “privileged,” it is not subject to disclosure. The court cannot demand that the parties disclose the information to the court through testimony or discovery.

The attorney-client privilege refers to the legal relationship between a client and an attorney. The relationship protects confidential information discussed by the parties. The client and the attorney assert the privilege when a court or other parties make a legal demand for disclosure of information related to communications between them.

Keeping information confidential encourages honest and complete disclosure of information. As a result, clients do not need to fear that what they say could be used against them in court.

It is essential for clients to disclose all relevant information to their lawyers. Lawyers cannot provide sound legal representation when they do not have all of the facts. Providing “bits and pieces” of information to an attorney out of fear the information will be disclosed to another party hurts the case.

When Does Attorney-Client Privilege Attach in a Criminal Case?

No single statute determines when attorney-client privilege attaches to a conversation. However, courts generally recognize attorney-client privilege when each of the following elements applies:

  • A person seeks legal advice from a lawyer acting in their capacity as an attorney
  • The communications between the parties are for the purpose of obtaining legal advice
  • The information is disclosed in confidence by the client 
  • The client has a reasonable assumption of privacy. He assumes that the information he discloses remains permanently protected from disclosure by the attorney.

Confidentiality can apply in all types of legal matters, including drug crimes, DUI cases, sex crimes, and theft. 

Are There Cases Where Attorney-Client Privilege Does Not Apply?

Yes, there are some instances where an attorney could be compelled to disclose confidential information discussed with a client.

  • Privilege may be breached after a client’s death if the client’s heirs or other parties claiming an interest in the estate file a lawsuit.
  • Privilege does not apply if the person seeks legal advice about committing fraud or a crime. However, if the crime or fraud was completed before seeking legal advice, privilege applies. The exception would be the advice is to obtain information to cover up the crime or fraud.
  • Situations where an attorney represents two parties. Neither party can claim privilege if they decide to litigate the matter that the attorney handled for them.
  • Conversations between attorneys and federal inmates, in some cases. If the purpose of the conversation is to obtain information to commit future acts of terrorism, privilege does not apply.

In addition, not all information related to the attorney-client relationship may be privileged. For example, general facts are not necessarily protected from disclosure. For example, the time and date of a client meeting or who attended the meeting may not be privileged. However, an attorney’s work product is generally considered privileged. 

Information disclosed by means that are not private or secure may not be privileged. Likewise, information that may be obtained by other means or an independent source is not considered confidential. 

How Can I Know When Attorney-Client Privilege Applies in My Situation?

There is debate about attorney-client privilege and free consultations. For example, does privilege attach to information disclosed before the attorney is retained? Does privilege apply to free consultations? 

Many sources argue that privilege may attach before a retainer fee is paid or a retainer agreement is signed. As long as the person seeks legal advice and reasonably expects the information to remain confidential, privilege attaches.

The key for attorney-client privilege to attach is that:

  • Some type of communication was made in confidence
  • Between an attorney and client or potential client
  • To seek legal advice about a criminal or civil matter

However, there is some dispute. Therefore, ask the criminal defense lawyer if the attorney-client privilege protects your conversation. In many cases, attorney-client privilege applies. Especially if you and the attorney agree that the purpose of the conversation is to obtain legal advice. 

Suhre & Associates, LLC
214 S Clay St A
Louisville, KY 40202
(502) 371-7000