What Is Attorney Privelege?

Attorney Privilege is a legal concept that permits one to discuss privileged information with a lawyer without the lawyer’s permission. It was developed in 1791 by Alexander Hamilton in his treatise, The Federalist. According to this principle, “A lawyer may well speak with his client on matters of attorney-client practice, and, in so doing, ought not to be accused of bribery, unless he commits some wrong therein.” Attorney Privilege is applicable in a criminal case, where it is argued that a lawyer has a duty to withhold certain information from a criminal defendant. In civil cases, the attorney-client privilege exists only in order to protect the rights of the client.

Attorney PrivelegeThe attorney-client privilege protects a lawyer’s confidential communications with a client regarding any criminal case. This right is derived from the constitutional and ethical obligations of a lawyer under the law. As a general rule, lawyers cannot help a client commits a crime nor can they advise a client to do something that is illegal. A criminal lawyer, while representing a client in a criminal case, cannot be held guilty of criminal conspiracy, crimes of aiding and abetting, solicitation, dishonesty, perjury. However, if the lawyer fails to obtain an assurance concerning a client’s guilt or innocence, this may be considered a violation of the attorney-client privilege.

A person who is not a lawyer can assert attorney-client privilege as well, but this privilege does not extend to criminal proceedings. Criminal proceedings require a person to have a “special” or “confidence” that he or she will be found innocent. Thus, a person who is not a criminal defense attorney cannot use the attorney-client privilege to avoid providing evidence against his or her client in a criminal case. However, an attorney can assert attorney-client privilege in order to protect the confidentiality of communications between an attorney and a client. Such communications may include an attorney’s notes regarding a case, discussions with a client concerning a case, a review of documents provided by a client in a case, etc.

There are three basic privileges recognized by the law: the attorney-client privilege, attorney work product, and attorney-client confidentiality. Attorney-client privilege protects the attorney’s confidential communications with a client and works product protects the attorney’s work product in the course of representation. The attorney-client privilege protects confidential communications between a client and his or her attorney, and attorney work product protects communications that involve any representation involving any clients. If either of these privileges are waived, a federal court has the power to enjoin the violation.

Criminal proceedings often lead to substantial damages and an attorney-client privilege protects the attorney’s confidential communications with his or her client. In some cases, however, a criminal proceeding may reveal that a client was not represented adequately, or that the attorney had discussed legal issues with other clients, resulting in improper communication. In such instances, a client may assert the attorney-client privilege against another party who, in violation of the privilege, disclosed information about the attorney-client discussions. Similarly, if there is any evidence that reveals the attorney’s misconduct, the prosecutor may use any other method to present the evidence in court, rather than simply charge the attorney with the crime.

Attorney work product protects the attorney’s legal ideas, strategies, and opinions. It also involves the attorney’s work product in a proceeding such as an operative deposition, whether it occurs in a criminal trial or civil case. The work-product privilege protects communications by the attorney to a third person, whether in the course of representation or investigation. Such communications cannot be used against the client in a criminal case or a civil case, but may be used by the prosecutor in a civil case. Again, if there is any evidence of improper communication, the prosecutor can still use that evidence to charge the attorney with a crime even though the attorney-client privilege has been waived. Moreover, even if the privilege is waived, the prosecutor must still use any evidence obtained in good faith despite any fact that would make the prosecution entitled to any evidence.

Attorney Privilege law protects a client’s rights to confidentiality of communications. Moreover, the attorney-client privilege protects attorney-client communications between a lawyer and a client, regardless of the distance. Aiding a client in preparation of a defense strategy is a form of attorney-client communication protected by the attorney-client privilege. Moreover, the attorney-client privilege does not apply to communications with third parties that would not affect the attorney’s client’s position, like communications concerning potential witnesses, etc.

However, in some areas, attorney-client privilege law may be more limited. In a criminal trial for example, the prosecution can ask a witness to produce transcripts of a conversation between the attorney and the client. If the transcript is not properly completed or does not match the attorney’s knowledge, then the attorney may be in violation of the attorney-client privilege. While the attorney-client privilege law is broad, it is often implicated by prosecutors’ tactics.