Quiet private conference room in a law office with a closed door and warm lamp light
Clients often begin a conversation with an attorney by asking, “This is privileged, right?” Usually, that question is really asking two things: whether the attorney must keep the information confidential and whether someone can force the attorney to disclose it in court. Those concepts overlap, but they are not identical.
The Purpose of Attorney-Client Privilege
Attorney-client privilege generally protects confidential communications between a client and an attorney when those communications are made for the purpose of requesting or receiving legal advice.
The privilege encourages clients to provide complete and honest information. An attorney cannot offer reliable advice without knowing the facts, including facts that may be uncomfortable, embarrassing, or legally damaging.
The privilege generally belongs to the client. That means the client ordinarily controls whether the protection is waived.
Privilege and Confidentiality Are Different
Attorney-client privilege is primarily an evidentiary protection. It becomes particularly important when another party attempts to compel testimony, documents, messages, or communications during litigation or an investigation.
An attorney’s ethical duty of confidentiality is broader. It generally prevents the attorney from revealing information relating to the representation unless disclosure is authorized or permitted under a recognized exception.
The fact that an attorney is involved does not automatically make every conversation privileged.
How Clients Accidentally Create Problems
Privilege depends heavily on confidentiality. Clients should be cautious about:
- Copying friends or relatives on emails to an attorney
- Discussing legal advice in group text messages
- Forwarding an attorney’s analysis to other people
- Posting about the case on social media
- Using an employer-controlled email account
- Allowing unnecessary third parties to attend legal meetings
A spouse, parent, friend, or business partner may be supportive, but including that person in a legal conversation can create questions about whether confidentiality was preserved.
There are circumstances in which interpreters, investigators, experts, or other professionals may appropriately participate. Those arrangements should generally be coordinated through the attorney.
Honest Communication Is the Point
A client does not help an attorney by withholding unfavorable facts. Surprises discovered through police reports, discovery, opposing counsel, witnesses, or courtroom testimony are far more difficult to address than facts disclosed privately at the beginning of the representation.
Attorney-client privilege exists so legal advice can be based on reality rather than a carefully edited version of events. Use private communication channels, limit unnecessary third parties, and provide your attorney with the complete facts.
Speak Privately With an Attorney
A confidential consultation provides an opportunity to discuss difficult facts, understand the legal issues involved, and identify the options genuinely available to you.
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