WHEN IS AN ATTORNEY’S CLIENT PROTECTED
BY PRIVILEGE OR CONFIDENTIALITY?
Marilyn Longwell
Marilyn Longwell & Assoc., P.C.
Attorney-client privilege and confidentiality have the purpose of protecting the freedom of a client to consult with an attorney without fear of disclosure of the subjects of the communications. The privilege governs whether an attorney can be compelled to testify or provide other evidence (such as documents) of communications between the attorney and client. Confidentiality refers to the lawyer’s ethical duty to protect a client’s secrets and private information.[i] Whether a client’s information is protected in any case is more complicated than it appears. In some circumstances a client’s information or communications are not privileged or confidential.
In general a lawyer may not reveal information relating to the representation of a client unless the client gives informed consent or the disclosure is necessary to represent the client, subject to a number of specific exceptions. Simply put, a lawyer may reveal information as needed for the following reasons: 1) to prevent the client from committing a crime; 2) to prevent the client from committing fraud likely cause financial injury or injury to property; 3) to prevent or remedy injury to finances or property of another person because of the client’s use of the lawyer’s services; 4) to comply with a court order; or for other reasons about the client’s and lawyer’s relationship. However, a lawyer must reveal otherwise confidential information necessary to prevent death or physical injury.
Not all communications between attorney and client are confidential to begin with. First, communications not for the purpose of legal advice or representation are not protected. Information given to a lawyer in furtherance of a crime or fraud is not privileged. Conversations with an attorney in which a third person is present (not another party in the same legal matter) are not privileged, so, for example, the lawyer could be compelled to testify to the discussion. Lastly, information which is meant to be disclosed to a third party, for example settlement proposals, are not privileged.
Lawyers have many times been required to divulge information about plans to commit a crime that a client revealed to the attorney. This is not the same as telling the lawyer about a past crime which is not ongoing. Admissions of previous crimes are privileged.
Any consultation with an attorney with regard to a legal matter creates a confidential relationship even if the attorney does not accept the case, so long as the person is actually seeking legal advice or discussing potential representation. So those cocktail party informal legal questions aren’t privileged.
The takeaway from all of the recent discussions of attorney-client privilege is that you should not assume all of your discussions are privileged unless they are about legal representation on a matter that does not involve a future crime or fraud or threat of violence and does not include an unrelated person in the conversation.
[i] See comment 3 to the Illinois Rules of Professional Conduct of 2010, Rule 1.6(a)