Breaking Down Attorney-Client Privilege: What it Means and How it Can Affect Your Case
December 22, 2023 | Sagi Shaked | Legal Information
The attorney-client privilege is a well-respected privilege that has been around for a long time. Attorneys need to be able to serve their clients, and for individuals to obtain sound legal advice and representation.
The attorney-client privilege prevents a lawyer from being compelled to testify against their client. It is related to the duty of confidentiality, but these are two separate protections that apply at different times.
Suppose you’ve been involved in an accident and want to speak with an experienced personal injury lawyer. You may have concerns about how the information you share with your attorney will be used. Understanding the attorney-client privilege in more depth can help put your mind at ease.
What IsAttorney-Client Privilege?
The attorney-client privilege prevents using privileged communications between an attorney and their client without the client’s consent. Privileged communications are those between an attorney and their client about a case or potential case, with some exceptions.
Florida’s attorney-client privilege is set forth in the state’s Evidence Code. The privilege does not just prevent an attorney from testifying against their client. It also binds third parties from disclosing privileged communications between the attorney and the client.
For example, you may be discussing your memory of a car accident with your personal injury lawyer when the attorney’s legal assistant overhears the discussion. The legal assistant would not be able to testify about that conversation in court. The one caveat to this is the court may decide, in some cases, that an exception applies and order the legal assistant to disclose the conversation.
What Communications are Protected by the Attorney-Client Privilege
In Florida, the attorney-client privilege only applies if the following conditions are met:
- The communication was made during the actual rendition of legal services.
- The communication was meant to be confidential. That is, it was not meant to be disclosed to third parties (with limited exceptions).
- Your behavior after the communication does not show that you no longer intend for the communication to be confidential.
Your communication with an attorney may be privileged even if you did not hire them. Certain attorney-client protections will apply when initially consulting with an attorney about your case. It can sometimes be unclear when the attorney-client privilege has been triggered. At the beginning of any conversation or consultation with an attorney, you can ask whether the conversation is confidential and privileged.
When Does the Attorney-Client Privilege Apply?
The attorney-client privilege is a privilege that belongs to the client. As the client, you can waive or invoke the privilege when it is requested in judicial or administrative proceedings.
For example, suppose your personal injury case leads to the filing of a lawsuit. In that case, the opposing party may request information you shared with your attorney during discovery, in a deposition, or during the trial. If the attorney-client privilege applies to the requested information, you can decline to provide this information and prevent your attorney or others from sharing this information.
Exceptions to the Attorney-Client Privilege
As suggested above, the attorney-client privilege has several exceptions, including:
Physical Evidence
The attorney-client privilege only protects communications between the attorney and client.
Waiver
An individual can waive the attorney-client privilege by affirmatively consenting to waive the privilege. Their behavior may also be considered an implied waiver, such as by discussing the same information publicly and showing that you no longer intend for it to be confidential.
To Prevent Death or Serious Injury
An individual may be allowed to disclose otherwise privileged communications if necessary to prevent imminent harm to someone.
Fraud or Crime
The attorney-client privilege does not apply if the attorney’s services were obtained to help commit fraud or other crimes.
There are many other exceptions to the attorney-client privilege. If you have concerns, you can ask your attorney to explain these in more detail.
What Is the Attorney’s Duty of Confidentiality?
The attorney’s duty of confidentiality is distinct from the attorney-client privilege, though the two will overlap sometimes.
The attorney-client privilege prevents the disclosure of confidential communications between an attorney and a client.
In contrast, the duty of confidentiality is a professional obligation attorneys have to protect a broad range of communications with their clients. The duty applies to all information relating to an attorney’s representation of their client. It prevents the attorney from disclosing the information to third persons.
Further, the attorney-client privilege is codified in Florida law under the Evidence Code, but the duty of confidentiality is set out in the Florida Bar Rules of Professional Conduct. These Rules provide the professional and ethical guidelines that attorneys must adhere to. An attorney can face serious ethical consequences- including disbarment- if they violate this duty.
Notably, information protected by the attorney-client privilege also falls within the attorney’s duty of confidentiality, but the reverse is not always true.
What’s the Purpose of the Attorney-Client Privilege and Duty of Confidentiality?
To receive adequate legal advice and representation, it’s crucial that an individual can speak openly and truthfully with their attorney. An attorney can’t properly advise their client if they don’t know all the facts relating to an incident. Hiding information from your attorney can seriously hurt your case.
The attorney-client privilege and the duty of confidentiality are meant to protect your private information and encourage you to be truthful with your attorney.
Contact Our Personal Injury Law Firm in Miami, FL
If you’ve been injured in an accident in Miami, FL, and need legal help, contact our Miami personal injury lawyers at Shaked Law Personal Injury Lawyers to schedule a free consultation.
Shaked Law Personal Injury Lawyers
20900 NE 30th Ave Suite 715
Aventura, FL 33180
(305) 937-0191