Attorney-client privilege is a legal term that refers to the protection of certain information shared between the client and his or her attorney. This information is generally shared so that the client can seek proper guidance on how to best proceed with their case. It also ensures that an attorney does not have to testify against their client. This privilege is put in place to protect the client and not the attorney, and in most cases, only the client can waive the privilege. Attorney-client privilege is recognized by the Supreme Court of the United States as an important concept that allows clients to be open and frank with their attorneys, enabling their attorneys to most effectively advise and represent them in court.

Requirements & Exceptions for Attorney-Client Privilege

The United States has general requirements that must be met for attorney-client privilege to take effect. The first requirement is that the one who holds the information is a client or a prospective client. The second requirement is that the person with whom the confidential information is shared is a practicing member of the bar of a court, or the subordinate of a member of the bar, or is acting as the client’s attorney.

In some instances, there are a few exceptions to attorney-client privilege. Chief among these instances is when: the sensitive information was exchanged in the presence of someone who was neither the attorney nor the client; the information was given in an attempt to commit a crime or tort; or, the client has chosen to waive attorney-client privilege.

There are several other conditions under which attorney-client privilege will not apply. If the communication was exchanged with a member of the bar who was acting in a non-legal role, such as that of an adviser, then the privilege may not apply.

If the sensitive information had previously been exchanged with a third party prior to being given to an attorney, only the communication with the attorney is protected. The third party may still have the legal right and obligation to share the information in court. In certain cases, the exchange of information with a third party will waive attorney-client privilege.

Circumstances Where Attorney Client Privileges Are Waived

The Information is Already Common Knowledge

Obviously, attorney-client privilege does not apply to information that is not confidential. In the event that the incriminating information is already commonly held knowledge, the information cannot be considered confidential. In addition to this, information that was shared in confidence but has since entered in to public knowledge is no longer protected by attorney-client privilege and can be openly discussed in court.

To Prevent A Crime

If sharing the divulged information will prevent the committing of an illegal act, attorney-client privilege may not be in effect. Attorney-client privilege is not intended to give someone legal advise on how to best commit a crime.

To Protect the Interests of the Attorney

Attorney-client privilege may be moot when it is compromised so that a lawyer can see to their own interests. If withholding information will prevent the lawyer from receiving payment for services rendered, they are not bound by attorney-client privilege. In addition to this, if a lawyer must share the sensitive information to defend themselves against legal or disciplinary proceedings, they are permitted to waive the confidentiality privilege.

The Client is Deceased

Finally, attorney-client privilege will be waived in the instance that the client has passed away. If communication that had been previously exchanged under attorney-client privilege is pertaining to a last will and testament, and its disclosure is necessary to ensure the proper execution of the decedent’s wishes, then attorney-client privilege is waived.