If you have been accused of a crime and hired an attorney, you may be wondering exactly what to tell your attorney. While he or she needs to know the truth in order to prepare your case, can the things that you say really be used against you? Your attorney may tell you that anything that you say is protected by attorney-client privilege, but exactly what does it really mean, and what does it cover?
What Is Attorney-Client Privilege?
When you have attorney-client privilege, you have one of the oldest legal privileges for maintaining confidential communication. It is basically a confidentiality agreement between you and your attorney. It ensures that any communication that takes place between the two of you, stays between the two of you. The U.S. Supreme Court sees this as a measure that will allow for honest and frank disclosures between you and your attorney. It is felt that full disclosure will allow attorneys to provide the most effective legal counsel.
When Is It In Effect?
Attorney-Client privilege does not go into effect the minute that you speak to an attorney on the telephone. In the case of The United States v. United Shoe Machinery Corp., 89 F. Supp. 357 (D. Mass. 1950) There were several basic requirements laid out before privilege can be established.
You must first show that there is a relationship established between the you and the attorney. Simply put, you must be able to show that you were a client, and that this person were representing you for legal purposes at the time that you made the disclosure. The communication must have taken place in private, and the communication must have been for the purposes of soliciting legal services, or assisting in your legal defense. You can show the attorney client relationship by:
- A signed contract
- An oral or written agreement
- A letter of intent
- The person appearing on your behalf in front of the court
What you tell your attorney must also be in private, and it must be your intent to keep this information private. If the information is known by another person, or another source, it may not fall under being privileged information.
What Does This Privilege Cover?
The attorney-client privilege covers any communication that takes place between you and your attorney in any shape, form, or fashion. This covers written, verbal, as well as non-verbal communication. It will also cover any of your attorney's legal team who may be assisting on your case if they access this information in their preparation of your case. You will waive your privilege if you verbally communicate this information to them.
While that may sound very inclusive, there are certain types of information that it does not cover.
You cannot claim attorney-client privilege if:
- You communicate with your attorney, or solicit information from your attorney, regarding your intentions of committing a future crime.
- If you communicate anything which would result in your attorney being charged with malpractice.
- If you share the information in the presence of someone who can be forced to testify against you. This would exclude your spouse, or someone who was a party to the case.
- If your attorney represents others in the same legal matter.
Can Your Attorney Break It?
You actually own the rights to your attorney-client privilege. This means that the information that falls under this privilege should only be released when, and if you give permission for it to be, but this is not always the case.
Even if all criteria has been met, the court can force the release of the privileged information under Rule 501 of the Federal Rules Of Evidence. This basically says that privilege will be given on a case by case bases. While your attorney may be able to argue with the court to get around this ruling, they may be forced to disclose the information at the risk of being in contempt of court.
Your attorney can also break the privilege for several reasons. Two of these are if they are forced to do so in order to be paid for representing you, and at the insistence of your estate after your death.
What Does It Mean To You?
If you are seeking legal counsel for any reason, you want to be as truthful, and forthright with your attorney as you can be. Knowing as much as they can about your case will not only allow them to prepare effective counsel, but it will also help them look for ways to suppress information that may be damaging to your case. Establishing attorney-client privilege, will hopefully keep the information that you share from coming back to haunt you.
For more information, contact a local law firm, like Kaiser Law Group.