Attorney-client privilege helps to provide clients with the ability to speak freely to their attorney without worrying about the attorney turning the information over to the authorities. There are several requirements that come into play before attorney-client privilege is established, and a few exceptions to the protections that this legal standard affords.
Someone who is trying to establish or assert attorney-client privilege must be a client of an attorney or be in the process of becoming a client. The attorney must be acting in a professional capacity. The information must be provided by the client must have been for the purpose of obtaining legal advice and have been made in confidence.
The scope and limitations of the privilege
Attorney-client privilege covers only communications and not underlying facts. For example, if a client tells an attorney where a body is buried, the communication is privileged, but the location of the body itself isn’t. Additionally, there are exceptions to the privilege. For instance, the crime-fraud exception can strip the communication of its protection if it’s intended to commit or cover up a crime or fraud.
Risks of malpractice linked to attorney-client privilege
Misunderstanding or misapplying the attorney-client privilege can lead to legal malpractice. Common pitfalls include:
- Failure to establish a clear attorney-client relationship: Without clear evidence of such a relationship, the privilege might not apply, potentially exposing sensitive information.
- Inadvertent waiver of the privilege: This can occur if privileged information is shared with third parties who aren’t involved in the legal consultation, or through other careless handling of communications.
- Misjudgment in applying the crime-fraud exception: Attorneys must exercise careful judgment when determining whether their advice is being used for criminal or fraudulent purposes, which can be particularly challenging in complex cases.
Clients whose cases are negatively affected by a breach of attorney-client confidentiality that did not serve a legally acceptable purpose may opt to pursue a compensation claim for legal malpractice. This can be a complex undertaking, so it’s best for them to work with a legal representative who can get the facts of the case together and move the case forward accordingly.