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Breaking Down Attorney-Client Privilege: What it Means and How it Can Affect Your Case in Boston

Published in Personal Injury on December 21, 2021

Attorney-client Privilege

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Most people have heard of attorney-client privilege. They are familiar with the term thanks to criminal court cases on television or in movies. You might have even heard the concept extend to other cases, such as those involving car accidents or slip and falls.

However, attorney-client privilege is not that simple. You need to know a few more things about privilege and how it can impact your Boston personal injury case. 

What is Privileged Information?

When information is privileged, that information is not subject to disclosure to another party without consent. The other party cannot use discovery tools to obtain privileged information in a lawsuit or legal matter. In addition, the party cannot be compelled to testify about the information in court.

There are several types of privilege that might apply in a legal matter:

  • Privilege against self-incrimination
  • Attorney-client privilege
  • Spousal communications privilege

Are you interested in attorney-client privilege and how that privilege can impact your personal injury case? At the very least, you probably want to know if what you tell your attorney is considered confidential information covered by privilege.

What Are the Requirements for Attorney-Client Privilege?

For attorney-client privilege to apply, the following criteria must be met:

  • The communication is between a client or potential client and an attorney
  • The client or potential client has an expectation that the information being disclosed will remain confidential
  • The purpose of the conversation between the attorney and the individual is for the individual to obtain legal advice
  • The attorney acted in their professional capacity during the meeting

Generally, privilege does not apply when a third party is present during the conversation. Privilege only applies to private conversations, so having a third party in the room makes that matter moot.

When Does Privilege Arise?

There may be some confusion about when privilege attaches to communications and conversations. Before privilege can exist, the individuals must have an attorney-client relationship. Therefore, attorney-client privilege exists once a person retains an attorney to represent them regarding a legal matter.

What about the information disclosed during a free consultation or initial meeting? Is that information privileged? Some sources would argue that privilege cannot exist because the person has not retained an attorney to represent them regarding a legal matter.

However, an individual does not have to hire an attorney for privilege to exist. The requirements state that the purpose of the conversation must be to obtain legal advice. Suppose a person seeks a consultation to obtain legal advice regarding a specific legal matter. In ttheir case, a judge could find that the parties meet the requirements for attorney-client privilege.

To protect yourself, you should confirm with the attorney that discussions during your meeting are confidential and covered by attorney-client privilege. Otherwise, you may want to consider whether to disclose all sensitive information during a free consultation.

What Are the Benefits of Attorney-Client Privilege?

The main benefit of attorney-client privilege is to protect the confidentiality of your information and communications with your attorney. You do not want certain information disclosed in court or through discovery methods

Typically, when privilege applies, the attorney cannot be compelled to disclose information provided to them in confidence by a client for the purpose of seeking legal advice. The attorney is ethically bound to not voluntarily disclose information provided to them in confidence. Likewise, you cannot be forced to testify or disclose the information you discussed with your lawyer while seeing legal advice.

The concept of privilege encourages clients to be open and honest with their attorneys. When a client feels confident that they can say anything to their attorney, they are more likely to provide complete, accurate information relevant to the case. An attorney cannot effectively represent a client unless the attorney knows everything that their client knows.

Can Attorney-Client Privilege Be Waived?

It is difficult to break attorney-client privilege. However, there are exceptions to the rule.

A client may waive privilege voluntarily. Waiving privilege may be necessary in some situations in which the attorney must disclose information for the client’s best interest.

There are also some situations in which privilege would not apply, such as:

  • Monitoring inmates’ conversations with their attorneys if there is reasonable cause to believe the client is using privilege to conceal terrorism.
  • After a client dies, the attorney may breach privilege during litigation between the client’s heirs or parties claiming to be heirs.
  • A client seeking legal counsel regarding a crime or fraud the client intends to commit. 
  • When an attorney represents two clients, neither party can claim attorney-client privilege in future litigation related to the matter of joint representation

Some matters are not protected by privilege as a matter of law or public policy. For example, information discovered from a third source may not be privileged. Likewise, the meeting date might not be privileged, but while the conversation during the meeting is subject to attorney-client privilege.

A good rule of thumb to remember is to tell your Boston personal injury attorney everything about your case. Even the smallest detail could be the key to winning your case. But, on the other hand, your attorney learning details that you kept secret in the middle of your case may negatively impact the outcome.

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