The Attorney-Client Privilege
Attorney-Client Confidentiality
Confidentiality is a sacred duty an attorney and the attorney’s staff owe each client, former client, and client representatives.[1] This duty of confidentiality is important because it encourages the client to be truthful with the attorney by disclosing information the client may not want public. The duty of confidentiality also applies to information the attorney discovers independently through the attorney’s investigation of the matter. This duty of confidentiality covers nearly all information the attorney obtains during the attorney’s representation of the client. The client has the authority as to when the confidentiality can be waived or made public to voluntary disclosure.
Attorney-Client Privilege
The attorney-client privilege is more narrow in its application and is intended to protect the client by restricting the attorney from disclosing confidential information in any legal proceeding.[2] All legal proceedings require some form of truth and candor with some legal proceedings requiring an oath subject to perjury. Therefore, the attorney-client privilege is an evidentiary privilege that protects against compelled disclosure of confidential information in judicial and administrative proceedings. Without this privilege the attorney, during legal proceedings, would be forced to decide between the attorney’s oath of truth to the legal system and the attorney’s duty of confidentiality to the client.
Common Exceptions to the Privilege
The attorney-client privilege is not absolute and once it has been waived it cannot be used in the future. There are three ways to waive the attorney-client privilege: failure to assert the privilege, client affirmative waiver of the privilege, and a statutory waiver. Failing to assert the privilege can be as simple as the attorney forgetting to assert the privilege, for example, when the client is providing oral testimony at trial. Next when the client makes an affirmative waiver the client is making a complete waiver of the privilege and any duty of confidentiality. Finally, we will examine the two most significant statutory exceptions to the attorney-client privilege.
- R. Evid. 503(d)(1): Furtherance of a Crime or Fraud.
If the lawyer’s services were sought or obtained in an attempt to commit a crime or an act of fraud the privilege does not protection the information. However, this exception is not as clear as it appears because the client must intend to commit the crime or fraudulent activity and the client must know the activity is unlawful. When a client approaches a lawyer about a potential course of action and learns through the lawyer’s consultation that the activity is unlawful this would not invoke the crime/fraud exception. Moreover, the client must be seeking out the lawyer’s services that would assist in the furtherance of the unlawful act—which differs from mere consultation or advice. The privilege does apply, however, when the client communicates to the lawyer about past unlawful activity.
- R. Evid. 503(d)(3): Breach of duty by a lawyer or client.
This exception arises when there is a dispute between the client and the lawyer. For instances, when a client attacks the lawyer’s performance (i.e. legal malpractice) the client cannot silence the lawyer based on the attorney-client privilege; however, the waiver of the privilege applies only to the relevant and necessary information to the parties’ dispute. Another example is when the client refuses to pay the lawyer’s fee the client is waiving the privilege. When lawyers sue clients because of non-payment of attorney’s fees the lawyer still must respect the general confidentiality of the client communication and not disclose too much information in public pleadings and narrowly define the dispute as the client still has authority of the attorney-client privilege.
Conclusion
The attorney-client privilege is fundamental to effective representation because without complete information the lawyer is at a disadvantage, and without the privilege the client may not disclose some of the most important facts. Thus, the privilege actually benefits both parties—the lawyer can do his job effectively and the client has control over the disclosure of his private information. Even when the privilege is removed it is usually only a partial removal so as to give just enough information to maintain the integrity of the privilege.
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[1] Rule 1.05. Confidentiality of Information
[2] Tex. R. Evd. 503