Attorney-client privilege is a crucial part of any relationship between a legal professional and the person they are representing. It not only preserves confidentiality, but allows an attorney to do their job to the best of their ability. However, there are some cases where attorney-client privilege is waived. A legal professional must disclose the communications in question. If you need the expertise of an attorney, check out the rest of this blog for a better understanding of how you’re protected by attorney-client privilege.
Attorney-Client Privilege: How it Works
The overall premise of attorney-client privilege is simple. An attorney may not reveal the oral or written communications they have with a client to anyone, according to professionalism codes. The only exception is to other members of their legal team, but this requires the client’s full consent.
This means that the client has all the privileges. Only the client can decide to waive this privilege, never the attorney. The attorney-client privilege applies to the following:
- Attorney-client communications regarding legal advice
- An attorney is acting in a professional capacity — not as a friend or mentor
- The client wants communication to remain private and expects an attorney to act accordingly
The overall purpose of attorney-client privilege is also simple. It’s used to encourage clients to openly share information with their attorneys. This helps them to provide the best possible representation.
The Crime-Fraud Exception
Of course, there are exceptions to attorney-client privilege. The main exception is based on whether a client’s communication refers to the intent of committing or covering up crime or fraud.
Attorney-client privilege relies on the intent of the client. Many courts will apply this exception even if the attorney had no knowledge of the client’s intentions.
The crime-fraud exception applies to the following:
- The client is in the process of committing or intending to commit a crime or fraudulent act
- Communications are based on the intent to further a crime or fraudulent act or cover it up
- Civil tort — seeking legal advice with the intent to commit or cover up a crime or fraudulent act.
It’s important to note that the client’s objective must be criminal in order to qualify for the crime-fraud exception. However, some acts of civil tort also qualify as criminal.
Common crimes and fraud include:
- Asking an attorney to present information or testimony that they know is untrue
- Concealing or destroying evidence
- Tampering with witnesses
- Concealing assets and income
- Threat to cause harm or death to a witness, attorney, or judge
- Revealing important information on a missing person
The crime-fraud exception also depends on the context and content of communication between a client and an attorney. If the crime-fraud exception does apply, an attorney will be asked to disclose this information.
Present or Future Crime-Fraud Exceptions
If communication refers to a past crime, this almost-always remains confidential.
However, it’s a different story with communications regarding ongoing or future crimes. Many courts will immediately apply the crime-fraud exception to a current intent to commit crime or fraud.
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