There's been a lot of information (and some misinformation) in the media lately about attorney-client privilege. It is an essential part of our justice system. Clients must have the ability to be honest and forthright with their attorneys for those attorneys to properly represent them. People need to know that the information they share with their attorneys won't be used against them in court without their consent. It's essential, however, to understand some important limitations on that privilege.

Waiving the Privilege

A client may choose to waive the privilege. That generally needs to be done in writing to ensure that the client is aware of what he or she is doing and there is no misunderstanding. This is called "informed waiver." Sometimes people or entities choose to waive the privilege to help convince a judge or jury that they have nothing to hide. It's important to understand that once you've waived that privilege, you can't "un-waive" it.

One of the most common ways that clients waive the privilege is by allowing a third party to be present during their communication with their attorney. This doesn't include clients who are also being represented by the attorney in the same matter. It also generally doesn't include language interpreters.

Failure to Object

In some instances, it's up to the client to object to privileged information being disclosed to the other side. For example, if both sides request information during the discovery phase of the case that the client considers privileged, it is up to that client to object in a timely manner. If that isn't done, attorney-client privilege no longer applies to that information.

Non-Legal Advice

Attorney-client privilege usually applies only to matters related directly to the case at hand. If a client shares other personal information with an attorney that is irrelevant to the case, the attorney likely isn't required to keep it confidential. However, it's important to let your attorney know if you expect something you share to remain between the two of you and to get confirmation that it will.

Crime or Fraud

The privilege doesn't apply when an attorney and client were both involved in committing a crime or fraud, allowing it to continue or covering it up. Further, if a client tells his or her attorney of plans to commit a serious crime, that attorney may be able to disclose the information to the appropriate authorities to protect potential victims without violating the privilege.

When you talk to a criminal defense attorney (or any attorney), it's wise to clarify up front whether your conversation will be protected by attorney-client privilege. Likely, it will be. However, once you've destroyed that privilege, the damage may be done.

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