The “Attorney-Client Privilege” is the oldest legal privilege in the American legal system. Its roots can be traced back to ancient Rome and was a well established concept during the first Elizabethan Age of English history. The Attorney-client privilege is based on a simple principle, that neither the attorney nor the client may be compelled or coerced into disclosing information discussed in confidence.
Defining the Attorney-Client Relationship
Many individuals wrongly assume that the attorney-client relationship exists prior to the formal establishment of a true relationship. Initial conversations may not be covered under the principle if a formal relationship is never established. Fortunately, establishing an attorney-client relationship is a relatively easy process. Once the client has retained an attorney for counsel and representation and a contract or agreement is signed, the formal attorney-client relationship is established and any confidential information is protected, unless the client waives that privilege.
What Are Confidential Communications?
Once the attorney-client relationship is established, communications between the client and attorney are generally considered confidential. This includes email, telephonic, and in-person communications. However, this does not mean that everything in that communication is protected as confidential. For example if an attorney is advising a client of a hearing date and time in an email, that communication would not be considered privileged unless there are other personal things said in confidence (as speaking of the hearing only, is public knowledge).
Also, if another person is in the room with the client when they are speaking with their attorney or if another person is copied or forwarded the communication chain between the attorney or client, that communication, generally, will lose its confidentiality, unless the person copied or forwarded the communication, has a confidential relationship with the client, such as a doctor or priest. The participants not covered by the attorney-client privilege who are in attendance at the time the attorney and client are speaking, or if they are included in a communication, and if there was confidential information disclosed, those outside parties can bedeposed to expose the communications in a deposition or in a court of law.
Exceptions
In the event that a client passes away, the attorney is no longer compelled by the privilege especially if legal actions ensue with the deceased estate. The privilege also will not cover a client who seeks advice regarding the planning or commission of a crime or fraud. The privilege also becomes murky when the client is a business or corporation. For example, the attorney has a fiduciary duty to the shareholders and the corporation but that may not have a “privileged’ relationship..
Items Not Covered
Not all issues or communications are covered under attorney-client privilege. The technical aspects of any conversations may be admitted in during the course of a case, as stated above. This also includes the time and date of the conversations. The communication has to be a confidential communication in a court of law.
Goldstein & Scopellite, PChas qualified attorneys at their offices located in Dallas, Texas and Tucson, Arizona. Goldstein & Scopellite, PC was established in 2002. For more information, see our local listing in D Magazine or their websites at: www.LawyersDallas.com and www.Lawyers-Tucson.com. Thank you.
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