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What you should understand about attorney-client privilege

There's been a lot of discussion of attorney-client privilege in the media lately. Even though it's a concept that's been around in some form for centuries, many people misunderstand it. People often assume that it means that any time you're speaking with an attorney about anything, the attorney is bound to secrecy. That's far too broad of an interpretation.

It's essential for clients to be able to be completely honest with their attorneys regarding the matter for which they've engaged them, even if it involves admitting to wrongdoing or something embarrassing. Attorney-client privilege essentially means that any information that a client provides his or her attorney about a legal matter, whether verbally or in writing, cannot be used by the attorney in court without the client's permission.

That brings us to the first way that the privilege may be waived or destroyed -- "informed waiver," A client may agree to waive the privilege regarding one or more matters. Attorneys usually require a client to do this in writing. Clients sometimes agree to waive the privilege to demonstrate to a judge and/or jury that they have nothing to hide.

A common way that clients waive the privilege is by letting a third party in on the attorney-client communication. This can include having a conversation with that third party present in the room or via phone or on an email. Note that if you're discussing a legal matter with your attorney and another client being represented in the same matter, that doesn't constitute a waiver. Language interpreters also are usually not considered third parties.

Another way that a client can waive the privilege is by something called "failure to object." If the other side in the case requests information in the discovery phase that a client wants to remain privileged, he or she must object. If that isn't done, that information is no longer privileged.

There is one critical exception to attorney-client privilege. That's the crime-fraud exception. If a client and attorney are discussing potentially engaging in criminal activity or fraud or allowing that activity to continue, attorney-client privilege doesn't apply to those communications.

Experienced attorneys take attorney-client privilege very seriously and strive to make sure that their clients don't unwittingly waive or destroy that privilege. However, if you have any questions about whether something you're about to disclose to your attorney is protected by this privilege, ask first.

Source: FindLaw, "How is Attorney-Client Privilege Destroyed," Andrew Chow, Esq., accessed April 17, 2018

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