The law recognizes certain communications as being so important as to warrant legal protection from mandatory disclosure in judicial proceedings. We have all heard of the physician-patient privilege and the clergy-penitent privilege, but the law also recognizes a privilege between attorney and client which protects confidential communications made to the attorney by the client. The privilege prohibits an attorney from testifying about or disclosing confidential communications made to the attorney without the consent of the client.
The reason for the existence of the attorney-client privilege is simple: Proper representation of a client requires that an attorney have all of the available facts and information – even information which may be damaging or potentially embarrassing to the client. Without the assurance that all such communications are protected, clients would be reticent to “open up” – thus hindering proper representation and protection of the client’s interest. Only with complete candor can the attorney properly represent the client.
A few caveats are in order:
- Communications (whether oral or otherwise) must be conveyed confidentially. The presence of or receipt by a third party can defeat the privilege.
- The privilege is that of the client – to be honored or waived by the client. An attorney may not waive the privilege without the client’s express consent.
- The privilege survives the death of the client. An attorney may not reveal confidential communications in a court proceeding even after the client’s death.
- Communications by the attorney to the client are also protected to the extent they reflect advice given in response to confidential communications or contain information previously revealed by the client.
We assume at the outset that communications received from our clients are intended to be confidential, and we take steps to protect that confidentiality. The attorney-client privilege is integral to a healthy attorney-client relationship. Clients can rest assured that all communications to their attorney will be strictly protected.
– Kevin Palmer