Attorney-client privelage is one of the most sacred tenets of our system of justice. It is the bedrock upon which a client’s right to counsel is based, and it is the means by which attorneys are able to provide the best possible advice during a legal case.
Most people have probably heard of attorney-client privelage, but unless they have attended law school, they probably don’t understand all its intricacies. The privilege itself is not recognized by the Constitution, but most legal minds would likely agree the right to counsel at least implies it.
But are all conversations between an attorney and their client private?
Under the rules of both courts and most Bar associations, an attorney is forbidden to share anything revealed to them in confidence by a client. The concept of a confidential attorney is of prime importance. If they divulge, they risk their ability to practice law again. The reason for the privilege is simple. Clients in criminal cases, for example, can’t risk their attorney being turned into a witness against them. Without the ability to speak frankly, their right to a competent defense is compromised.
Despite the privilege and its vaunted station in our justice system, there are some exceptions to privilege. For example, a confidential attorney and a client cannot conspire to perform illegal acts. If an attorney and client are discussing a case with someone else in the room, the person present who is neither an attorney nor client may be compelled to testify in certain circumstances.
Care must be taken to protect confidential communications, or clients risk losing their privacy and privilege.
What most people should take away from any discussion of this principle is the privilege belongs to the client and is only enforceable against the attorney. This means the client has the right and the power to assert privilege even if their attorney doesn’t cooperate. That’s one prominent example of how seriously the relationship between attorneys and clients is taken.
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