Attorney-client privilege is a legal doctrine which applies to communications between a lawyer and a client. Basically, it means anything you say to me – with some exceptions, of course – goes into the vault, and I cannot be compelled to tell anyone what you said: not during testimony, not by sharing notes or emails, not by giving cops recordings of our sessions, and so forth.
You should also know that this privilege is not just related to your criminal defense attorney. You can also expect the same type of privacy protection from the legal staff in the office that handles any type of legal communication with clients. In the United States, having this all-important privilege gives every person the right to reach out for legal guidance and help without the fear that it will be used against them at some point in the future.
Why does attorney-client privilege matter?
We often say, “you can trust your attorney” but that can be really difficult to do, especially when you find yourself facing a series of events that puts you in a very bad spot. With attorney-client privilege, you can breathe a bit easier. No qualified attorney will break this privilege. It could mean losing their job permanently, because you can be disbarred for it.
When do I have attorney-client privilege?
There’s no hard and fast rule about the exact moment privilege applies, but basically, it works like this:
- You call or visit my office.
- You say, “I want to hire you as my lawyer.”
- I go “Okay. You’re gonna need to sign this contract that says you’re hiring me. Also, you’ll have to pay me.”
- You say “Yes, I agree.”
Presto! Attorney-client privilege exists.
So there is an understanding that some kind of professional agreement has been reached. For example, you cannot expect attorney-client privilege when, for example, asking a friend for advice at a cocktail party. A lawyer must be working in a professional capacity at the time of any disclosures.
What are the elements of attorney-client privilege?
Attorney-client privilege comes down to these key elements: “(1) Where legal advice of kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.”
This means that when attorney-client privilege is in place, your attorney cannot discuss your case or your private information with anyone outside of that legal boundary.
Are there limitations to attorney-client privilege?
Frankly, there are few situations in which attorney-client privilege is ever broken, but there are some situations where there are limits.
The crime-fraud exception
This rule holds that if a client intends to commit or was in the midst of committing some type of fraud or another type of crime and communicated that intent to an attorney, the attorney has the right to disclose this information to the local authorities.
This could include knowledge that a client planned to:
- Destroy evidence
- Conceal income
- Threaten someone
- Tamper with a witness
- Perjure themselves
Note that this exemption also applies to past crimes. In particular, this means that if a client has committed or plans to commit some type of crime, they cannot tell their attorney this and not expect the attorney to take some type of legal action. So if, say, I knew you were planning to hurt another person, I have the legal right and obligation to stop that from occurring and report it to the proper authorities.
Here’s the fancy legal language Maryland uses to talk about this exception (Maryland Court Rules, Rule 19-301.6):
An attorney may reveal information relating to the representation of a client to the extent the attorney reasonably believes necessary:
- to prevent reasonably certain death or substantial bodily harm;
- to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the attorney’s services;
- to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the attorney’s services;
- to secure legal advice about the attorney’s compliance with these Rules, a court order or other law;
- (to establish a claim or defense on behalf of the attorney in a controversy between the attorney and the client, to establish a defense to a criminal charge, civil claim, or disciplinary complaint against the attorney based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the attorney’s representation of the client; or
- to comply with these Rules, a court order or other law.
A reasonable expectation of privacy
Another type of limitation that can apply to attorney-client situations relates to situations where the client cannot reasonably expect that communication to be private. For example, if a client writes out a lengthy admission of their guilt regarding a crime and mails it to an attorney, but does not disclose the information is private, they cannot assume that someone else will not read it first. If you speak to your attorney in the middle of a crowded restaurant, there may not be that same level of privacy protection either.
What’s the bottom line about attorney-client privilege?
When you enter into a relationship with an attorney, and you do so with the expectation of privacy, the attorney cannot (and will not) disclose that information to anyone else. You can trust that you can safely receive legal advice without complications outside of the exemptions provided.
If you need help with criminal defense in Annapolis and Ellicott City, Call Drew Cochran, Attorney at Law, for immediate guidance. I will explain the intricacies of your case so that there is no doubt in your mind when making a decision about your future. . Call me today or submit my contact form to schedule an appointment.
And remember — Keep Calm, and Call Drew.
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