26 Aug Understanding Attorney-Client Privilege
A good criminal defense attorney knows that they cannot properly defend against a prosecutors case unless they know if the client is guilty of the crime or not. Attorney-client privilege, however, is often confused with attorney-client confidentiality. The former is a rule that prevents a lawyer from being forced to testify in court. The latter allows for the client to share information without the fear of being exposed.
A Duty of Confidentiality
Even if a defendant is not guilty of a particular crime, they may need to share information that would be embarrassing or damaging to their personal lives, or even incriminating information about another crime with their attorney. Without confidentiality, how is a client to be open and transparent with their attorney?
Legally speaking, lawyers may not reveal any oral or written communication that has been shared by the client under the assumption of confidentiality. More specifically, according to one Hofstra Law Review article, the definition of attorney-client confidentiality involves four basic components: (1) a communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining or providing legal assistance to the client.
Situations where this rule applies include when a current or potential client communicates with a lawyer regarding legal advice, the lawyer is acting in a professional capacity, and/or when the client reasonably assumed communications to be private.
This confidentiality has a life-long span, so even after the attorney-client relationship is over, a lawyer is not permitted to divulge private information. Not only are there laws surrounding this concept which would prevent a lawyer from breaking confidentiality, but if they were to share private information of a client, it would undermine their reputation.
Privilege from Testifying
In addition to the confidentiality that a lawyer owes his or her client, they are also protected by something called Rule 1.6. The American Bar Association further explains the difference between confidentiality and privilege this way:
“The attorney-client privilege only protects the essence of the communications actually had by the client and lawyer and only extends to information given for the purpose of obtaining legal representation. The underlying information is not protected if it is available from another source. Therefore, information cannot be placed under an evidentiary “cloak” of protection simply because it has been told to the lawyer.”
On the other hand, confidentiality is much more wide-ranging and extensive, relating not only to information shared by the client, but also to all information regarding representation.