Breaking Down Attorney-Client Privilege: What it Means and How it Can Affect Your Case
July 25, 2023 | Ahmed & Sukaram, Attorneys at Law
Your relationship with your attorney is an integral part of developing your case. The potential risk of having your information fall into the wrong hands is terrifying.
Fortunately, the attorney-client relationship provides a safe means for communication between you and your criminal defense attorney. This means that communications regarding your case are protected from third-party disclosure.
What Is Attorney-Client Privilege?
Attorney-client privilege allows you to seek advice from your attorney without having to fear that your conversations will be disclosed. From the initial free consultation to the trial, you should have confidence that your communications with your attorney are privileged. This enables your attorney to successfully defend you with as much information as possible.
The following are examples of when the attorney-client privilege can be raised:
- There is a discovery request
- Your attorney receives a demand to testify under oath
- The attorney-client privilege existed when the communications took place
- There were communications between an attorney and a prospective client
- The communications between an attorney and client were not made in the presence of a third party
While your attorney cannot be compelled to disclose privileged information, they also cannot voluntarily disclose information conveyed in confidence. The attorney-client privilege also protects you from being forced to testify about communications made to your attorney when seeking legal advice.
What Constitutes an Attorney-Client Relationship?
Without an attorney-client relationship, the privilege is not applicable. Frequently this relationship is not established until the attorney expressly agrees to represent you and you hire the attorney.
The following are examples of when the attorney-client relationship is formed:
- There is an engagement letter
- A fee agreement exists
- There is an oral agreement regarding the scope of the representation
- The attorney files pleadings or drafts documents on behalf of the client
- The attorney appears in court on behalf of the client
- There is a reasonable belief that the attorney-client relationship exists
Simply talking to an attorney does not constitute an attorney-client relationship. For example, you run up to an attorney at a coffee shop and confess to committing a hit-and-run while driving under the influence. Is this conversation protected by attorney-client privilege? It depends on whether or not there was an implied relationship between you and the attorney.
The following are factors used to demonstrate an implied attorney-client relationship:
- Context of the conversation
- Payment of attorney’s fees
- The potential client’s ability to understand the relationship
- Requesting legal advice
- Receiving legal advice
- A history of the attorney representing the would-be client
If there is an attorney-client relationship, the client holds the privilege and the ability to waive or assert it.
Once you establish that there is an attorney-client relationship, you may be wondering if every communication with your attorney is protected. The communications that are protected are those where you are seeking legal advice from your attorney.
This privilege also applies to your attorney when they are communicating legal advice to you. However, some facts are not protected if they can be gathered from another source.
Exceptions To the Attorney-Client Privilege
Attorney-client privilege typically precludes disclosure of protected information to a third party. Some communications between you and an attorney may be discoverable, including when you communicated. There are also a few public policy exceptions to attorney-client privilege.
The following are common exceptions to the attorney-client privilege:
- The client dies
- A corporation’s shareholders want to pierce the attorney-client privilege
- A client cannot seek advice from an attorney in furtherance of a crime or fraud
Understanding when the attorney-client relationship applies can help you understand when to assert your privilege. Remember that the attorney-client privilege is not absolute.
Contact an Experienced Criminal Defense Lawyer for Help With Your Case
If you’ve been charged with a crime in San Jose, you should contact a criminal defense lawyer right away. They can protect your rights and ensure the prosecution treats you fairly. Contact Ahmed & Sukaram, Attorneys at Law to schedule a free consultation.
Ahmed & Sukaram, Attorneys at Law – San Jose Office
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