When the Attorney-Client Privilege Does Not Apply
The attorney-client privilege is a very powerful doctrine in the American legal system. The privilege protects communications made between clients and their attorneys for the purposes of seeking legal advice. Under the attorney-client privilege, parties typically cannot be compelled to reveal confidences made during the attorney-client relationship. However, there are some exceptions when the attorney-client privilege does not apply, and parties may have to disclose information that was exchanged between clients and their attorneys.
Other Parties Present
One exception when the attorney-client privilege does not apply is if other parties are present when the attorney and the client conversed. Oftentimes, if other parties are present and are able to hear the confidences exchanged between attorneys and their clients, courts will find that the attorney-client privilege has been broken. Of course, not all third parties will destroy the attorney-client privilege. For instance, courts usually find that interpreters who need to be present so that the attorney and client can communicate effectively will not destroy the attorney-client privilege. In addition, paralegals and some other professionals who work in an attorney’s office will oftentimes not destroy the attorney-client privilege if they are present and hear confidences between the attorney and the client. Furthermore, sometimes family members can be present during conversations between attorneys and their clients without affecting the attorney-client privilege. This is even more true if the family members are needed to supply information to either the attorney or the client and to assist the client in conveying information to an attorney. When speaking to an attorney, it is important that the client only confer with their attorney beyond the earshot of third parties or else this might be a situation when the attorney client privilege does not apply.
Crime or Fraud Exception
It is important in our legal system that attorneys and clients have candid conversations about the client’s legal situation, even if the client may have broken the law. Generally, conversations about a client’s position and how this may be illegal will be protected by the attorney-client privilege. However, if the client uses the advice of the attorney in furtherance of a crime or a fraud, this might be another situation when the attorney-client privilege does not apply. Courts do not want parties to engage in illegal activity and then hide behind the shield of the attorney-client privilege to avoid detection. As a result, if a client wishes to use legal advice to further fraudulent or illegal activity, they may not be able to use the attorney-client privilege to avoid revealing information.
Information Exchanged During Certain Proceedings
At certain proceedings during litigation, the attorney-client privilege might not apply. For instance, parties are usually asked questions under oath during a deposition at one point or another in most lawsuits. Courts have held that conversations attorneys might have with clients during breaks at depositions will not be covered by the attorney-client privilege. In addition, if a court orders that a witness provide testimony during a hearing the attorney-client privilege also might not apply for any conversations that took place between attorneys and their clients during the hearing or any breaks during the hearing. The reason for this exception to the attorney-client privilege is that courts do not want attorneys and their clients to use the attorney-client privilege as a shield to protect activities that might have an impact on certain proceedings. In any case, the attorney-client privilege might not apply during certain times over the course of a lawsuit.
Specific Documents and Information
Certain materials and information are usually not subject to the attorney-client privilege. For instance, the fact that an attorney is representing a given client is usually not protected by this privilege. In addition, fee agreements between attorney and client are commonly not subject to the attorney-client privilege, even though the agreement is a communication between attorney and client. Moreover, even if the subject matter of a given meeting is protected by the attorney-client privilege, other information about a particular meeting might not be protected. For instance, parties may need to reveal how long a meeting between attorney and client took place, who was present at the meeting, where the meeting occurred, and other information. Oftentimes, the attorney-client privilege is not as broad as individuals may think, and there a number of times when the attorney-client privilege does not apply to specific types of documents and information.
Death of a Client
Generally, the attorney-client privilege survives the death of a client, and an attorney cannot reveal the confidences of a client who has passed away. However, there are certain instances when an attorney may be compelled to reveal information about the client that the attorney learned while the client was alive. For instance, if litigation ensues about the deceased client’s estate plan, a court may hold that an attorney needs to reveal confidences to ensure that the client’s wishes are best carried out. In addition, courts may require that attorneys reveal the confidences of clients who may have passed away in order to assess whether the client had sufficient mental capacity to establish an estate plan.
The Rothman Law Firm does everything we can to ensure that the attorney-client privilege protects confidences given to use by our clients. If you would like to speak to an experienced New York and New Jersey attorney about your legal issue, please feel free to contact The Rothman Law Firm to request a free legal consultation.