Rosenbaum & Rosenbaum, P.C. | October 31, 2023 | New York Laws
Dealing with legal issues can be anxiety-inducing. You might not know where to turn for help or what to say to them. You might have sensitive information you wish to share, but you’re afraid it could wind up in the wrong hands or be used against you.
The attorney-client privilege is one of the most important aspects of the American legal system. It ensures that anyone who is seeking legal advice can communicate openly and honestly with an advocate without fear that the information will be disclosed to others.
However, attorney-client privilege is a complex issue with exceptions and nuances that most laypeople may not realize. Here, we break down attorney-client privilege and explain how it might affect your NYC personal injury case.
What Is Attorney-Client Privilege?
Attorney-client privilege is one of the most fundamental aspects of legal representation. Generally, anything you say to your lawyer in confidence is privileged, and your lawyer cannot repeat it without your permission. Your lawyer cannot share your secrets and is not allowed to tell them to third parties like business associates, government agencies, or criminal justice agencies.
Lawyer-client confidentiality is integral to ensuring that you can talk to your lawyer candidly, which, in turn, can help them better represent your interests.
When Does Attorney-Client Privilege Apply?
Attorney-client privilege only applies under certain circumstances. For this privilege to apply, you must have an attorney-client relationship with the lawyer. Additionally, the communication you are seeking to protect must be related to a fact you informed the lawyer of through this relationship. The communication must have been confidential and sought to receive legal advice or services.
Here, we break down each of these requirements:
For the attorney-client privilege to apply, the person you are speaking with must be a lawyer or an employee under their supervision. Additionally, they must have an attorney-client relationship with you. Often, this is pretty straightforward. You may have signed a retainer agreement and have a contract with the lawyer.
However, there are some gray areas. For example, if a person calls a law office, they may not immediately have privileged communications. Background information may be taken for intake purposes. A case review may not rise to the level of privileged communications.
Additionally, some lawyers provide pro bono services where they may provide legal information to the public and do not extend privileged communications in these situations.
Communications Made in Confidence
The attorney-client privilege applies to communications. The fact that a client had an appointment at a law firm may not be privileged.
The communication must be made in confidence to be protected. This means that it cannot be made in a public place or where someone else is likely to overhear it.
Additionally, if the information could be discovered another way, such as something the client publicly posted online, the communication is not made in confidence and is not subject to attorney-client privilege. Therefore, simply saying something to an attorney does not guarantee that it will be free from disclosure.
For the Purpose of Seeking, Obtaining, or Providing Legal Assistance To the Client
Generally, communication with an attorney is privileged when it is made to:
- Obtain an opinion on the law
- Obtain legal services
- Request assistance for some legal proceeding
Additionally, this privilege does not apply if the person seeking it is using this information for the purpose of committing a crime or tort.
Waiving Attorney-Client Privilege
The attorney-client privilege is intended to protect you, so you have the right to waive it when you don’t want or need this protection.
For example, you may decide to have your spouse or caregiver present when meeting with your lawyer, but if you do so, you waive this privilege. Likewise, you waive this important privilege if you tell someone else something you shared with or heard from your lawyer.
What Is Not Protected Communication?
It is important to keep in mind that not everything is considered a privileged communication, such as:
- The existence of the attorney-client relationship
- How long the attorney-client relationship has lasted
- The general nature of the services the lawyer performs
- The terms and conditions of the retainer agreement
- The date of communications and identity of people involved in the communication
- The length of a consultation
- Calendar listings of the appointment
- Fee arrangements
Anything the client shares with a third party not protected by the privilege is also not protected communication.
Benefits of the Attorney-Client Privilege
Attorney-client privilege allows a client to speak candidly with their lawyer, usually without fear of doing so. They are more likely to be honest when they know a privileged communication is involved, which can help a lawyer better prepare for a case. They can also protect their privacy because the communications are confidential.
Drawbacks of the Attorney-Client Privilege
Attorney-client privilege is not absolute. There are exceptions when the privilege may not apply. Additionally, a third party who overhears the communication may still repeat what they heard.
Furthermore, lawyers are officers of the court. They are expected to act in an ethical manner and not perpetrate fraud upon the court. Therefore, if their client tells them something in confidence that could damage their case, their lawyer may not be able to use certain legal strategies.
For example, if a criminal defendant admits to committing a crime, the lawyer cannot say their client is innocent. However, the lawyer could argue that the prosecution has not met its burden of proof.
Likewise, if you admit to your attorney that you were texting and driving right before you got into a car accident, your lawyer cannot put you on the stand to testify you were not. These are important considerations when preparing a personal injury case strategy.
Attorney-Client Privilege Exceptions in New York
While the general rule regarding attorney-client privilege is that your attorney cannot repeat anything you have told them in confidence, there are exceptions to this rule.
New York recognizes the following exceptions to the attorney-client privilege:
- An attorney can disclose communications they had with a deceased client if legal representation involves the preparation, execution, or revocation of any will or testamentary instrument.
- Communications may not be privileged if they were sought to further a fraudulent scheme, breach a fiduciary duty, or commit other wrongful conduct.
- A fiduciary exception can be made when a shareholder brings suit against corporate management due to a breach of fiduciary duty or similar conduct.
Additionally, a public policy exception may allow the disclosure of confidential communications.
If you contact us for a free case review, we can discuss attorney-client privilege and when it applies.