When Does Attorney-Client Privilege Not Apply?

When you hire an attorney, you receive certain rights given to you by law. One is the right to openly share information and secrets with your lawyer without fear of the lawyer communicating them to anyone else. This is called the attorney-client privilege. It is important to realize, however, that there are some circumstances when the attorney-client privilege does not apply.

What Is Attorney-Client Privilege?

Attorney-client privilege is a law that makes most communications between an attorney and his or her client confidential. This rule states that attorneys legally cannot divulge information from a client to third parties. The purpose of the attorney-client privilege is to allow the client the freedom to speak openly and without reservations to his or her attorney so that the attorney can better assist the client with effective representation.

The other purpose of the attorney-client privilege is to prevent an attorney from being able to testify against his or her client. It is a rule of evidence that protects an attorney from being forced to testify about his or her client’s statements. In addition to the attorney-client privilege, a lawyer also has a duty of confidentiality. This duty extends beyond communication with the client and covers all information relevant to the case, even if it did not come directly from the client.

When Does the Attorney-Client Privilege Apply?

Attorney-client privilege is not something that applies to all meetings with an attorney. In some circumstances, an attorney may not be held to the requirement of confidentiality. It is important to know when this privilege applies and when it does not. For the attorney-client privilege to exist, the situation must fulfill certain parameters:

  • The attorney must be acting in a professional capacity. The attorney must be speaking to you as a client or potential client while acting as a legal representative. If you have a friend who is a lawyer and he or she gives you friendly advice, the attorney-client privilege will not apply.
  • The communication must be for the purpose of obtaining legal advice. You must be consulting with an attorney to request or receive legal advice. If you send an email to an attorney as an administrator at the law office, for example, this communication is typically not privileged.
  • The communication must be between the client and the attorney only. If you invite someone else to join the conversation, the attorney cannot guarantee confidentiality. As the client, you must intend for the conversation to be private and act accordingly.

When the attorney-client privilege does apply, a lawyer lawfully may not reveal communications from a client that were expected to remain confidential. Even if a client passes away, the lawyer cannot divulge the client’s secrets without the client’s permission unless an exception to the rule applies.

What Is the Crime-Fraud Exception?

Attorney-client privilege is something that belongs to the client. Therefore, the client’s intent in telling the attorney a piece of information determines whether or not the attorney-client privilege applies. One exemption from the general rule is called the crime-fraud exception.

The crime-fraud exception applies if a client tells an attorney that he or she intends to commit a crime or act of fraud, or if the client is in the process of committing a crime. In this particular situation, the attorney is not required to keep the information confidential.

Note, however, that admitting to having committed a prior crime does fall under the attorney-client privilege. In a criminal defense case, for example, admitting the crime in question will not break the attorney-client privilege and may allow the attorney to build a stronger defense based on the facts provided.

For more information about the attorney-client privilege and how it operates in your personal injury case, consult with an attorney in Kansas City today.


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