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The “Privilege” of Talking to a Lawyer

ust about everyone has heard of the attorney-client privilege. And we all have an idea about what it means. But how much does the privilege really protect us? There’s been some public debate in Columbus, Ohio about this issue. Let’s clear it up a brief explanation.

Here are the basic rules.

  • First, as a general matter, the privilege applies when someone talks to an attorney seeking advice. In other words, it doesn’t apply when someone talks to an attorney for other reasons. It must be for the purpose of seeking advice.
  • Second, things someone tells a lawyer when seeking advice must be kept confidential. The attorney can’t turn around and disclose the information given by the client.
  • Third, the rules apply not only to actual clients, but also prospective clients. So the privilege applies when someone consults with an attorney to discuss the terms of representation. This is usually called an initial consultation, and the privilege applies even if the potential client doesn’t hire the lawyer.
  • There are also some basic exceptions. The attorney can share privileged information in several situations.

  • First, if the client expressly gives the lawyer permission, the information can be shared.
  • Second, even without express permission, there are times when certain information must be shared in order for the attorney to represent the client. For instance, if the client wants to get a continuance of a court date due to a scheduling conflict, the lawyer can share the basic terms of the conflict in order to get the continuance. Attorneys routinely share the “good stuff” about the client’s background. The lawyer learned this information in a privileged conversation , but it will help the client’s case if the information is shared.
  • Third, certain exceptions apply where the client discloses an immediate intent to commit a violent crime. Under some circumstances, the lawyer can share information in order to prevent harm.
  • Other factors also affect the privilege. When we meet with clients, we often exclude family members during all or some of the meeting. This is so we can protect the privilege. It does not apply when there are other people participating in the conversation. By very definition, the conversation is not privileged. We also hold our staff members to the same privilege, even though they may not be licensed attorneys.

    So, the privilege covers things a client (or prospective client) tells an attorney. But client protection does not end there. Attorneys are also bound by confidentiality. This means that attorneys generally cannot disclose things they have learned while representing the client. This applies even to things that the client did not directly tell the attorney. This confidentiality requirement is much broader than the privilege. And it is often overlooked when people debate these topics.

    In sum, there are few things more important than the attorney-client privilege. We want to develop a trust relationship with our clients. We want our clients to be comfortable sharing the details of their problems with us. We have to trust our clients, and our clients have to trust us. Only then can we gain the foundation to fashion a global resolution to their problems.

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