Thursday, October 14, 2021

What is Attorney-Client Privilege?

          We all have different relationships in life. Siblings, spouses, best friends, and work colleagues to name a few. They all play different roles, some more important than others. However, the relationship between a client and their attorney is a different one altogether.

            When someone hires and attorney to help them with their claim, they form something known as the attorney-client relationship. According to the Cornell Law School’s Legal Information Institute, attorney-client privilege, “refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret.”

            Each state may have their own variation on the definition, though many follow the general foundation listed above. The definition of attorney-client privilege in Florida is governed by the Florida Statutes which say, “A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.”

            Every conversation you ever have with any attorney does not necessarily mean that an attorney-client relationship has formed. You cannot have attorney-client privilege without first creating an attorney-client relationship. In Florida, there are four elements that must be established for the attorney-client privilege to apply.

1.)    There must be a communication.

2.)    The communication must be made between privileged persons (a client with an attorney who has agreed to offer advice or take their case).

3.)    The communication has to be made in confidence (the client who shares the information with the attorney trusts that the attorney will keep what they said between them).

4.)    The client shares the information for the purpose of seeking or obtaining legal assistance in the hopes that the attorney will provide that legal assistance to the client.

However, the attorney-client privilege is NOT absolute. While you may share things with your attorney that you believe will not be shared with anyone else or the court, there are rules governing what attorneys are and are not obligated to share with others.

            Here are some examples of when an attorney-client privilege will not exist.

-  If the client is looking for their attorney to help them in committing a crime or help them in the planning of future criminal activity.

-   If the attorney is representing two or more clients who have a common interest, then one client cannot assert attorney-client privilege to prevent the attorney from communicating with the other client that they are representing in the same matter.

-   If an issue arises that would cause the attorney to breach a duty that they owe their client, then the communication that would result in that breach is not protected by attorney-client privilege.

            One important note. Attorney-client privilege is NOT the same as confidentiality. Every attorney is bound by the duty of confidentiality. This duty, “prevents attorneys from even informally discussing information related to their clients' cases with others. They must keep private almost all information related to representation of the client, even if that information didn't come from the client.” This is an important distinction to make because while you may think certain things are confidential, they may actually just be a result of attorney-client privilege and have the potential to be shared with others or the court.

            If you have any questions or are looking for more information about attorney-client privilege or another issue that you may have, please do not hesitate to fill out our contact form below to schedule your free consultation with Marcie Baker.

***The post is not intended as legal advice nor does it constitute the creation of an attorney-client relationship. It is for informational purposes only. Should you have any questions or concerns regarding a new or pending case that you may have please speak with an attorney or fill out our contact form below.***

Sources: https://www.law.cornell.edu/wex/attorney-client_privilege

https://www.hg.org/legal-articles/the-attorney-client-privilege-in-florida-29612#:~:text=In%20Florida%2C%20the%20attorney-client%20privilege%20is%20governed%20by,the%20rendition%20of%20legal%20services%20to%20the%20client.%E2%80%9D

https://www.nolo.com/legal-encyclopedia/attorney-client-privilege.html


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