The attorney-client privilege is one of the pillars of the Anglo-American legal system. Most legal scholars would argue that the legal system would be paralyzed without it. Litigants frequently rely on it in divorce, child custody, and domestic violence proceedings, as well as criminal proceedings.
It is easy, however, to confuse attorney-client privilege with similar concepts like attorney confidentiality and the work product privilege.
The Elements of Attorney-Client Privilege
In Florida, the following facts have to be true to trigger attorney-client privilege:
- You sought legal advice from a lawyer in their capacity as a lawyer. An aimless, drunken conversation at a bar might not qualify, for example.
- The communication at issue involved the legal advice you sought. Your lawyer is free to disclose non-legal matters even if they embarrass you.
- You intended for your communication to be confidential, and you treated it as such. If you speak of a matter too loudly in public, you might forfeit the privilege.
All of these elements must be present to trigger attorney-client privilege.
The attorney-client privilege is yours to either invoke or waive. You don’t have to specifically invoke it. Rather, it applies unless you specifically waive it.
How Attorney-Client Privilege Benefits You
Attorney-client privilege is a rule of evidence that prevents anyone (including but not limited to your lawyer) from using your confidential communications with your lawyer against you. That means:
- Your lawyer can refuse to answer questions about your communications even while being questioned on the witness stand. Even if your lawyer ignores the privilege and testifies about your confidential communications, the court will delete that testimony from the record and ignore it. The judge might even declare a mistrial.
- Even a third-party eavesdropper stands in the same position as your lawyer. Anything they have to say that violates the privilege cannot be used against you.
The privilege applies to spoken, written, and electronic communications.
Exceptions to Attorney-Client Privilege
Several exceptions apply to attorney-client privilege, including the following:
- It does not apply to physical evidence. You can’t avoid prosecution by giving your lawyer a gun to hide, for example.
- It doesn’t apply if you don’t make efforts to keep it secret. If you speak loudly, for example, you might not be able to prevent an eavesdropper from testifying against you concerning the content of your conversation. Court decisions are split on whether you enjoy confidentiality on prison phone lines that you know are being monitored.
- If you die, attorney-client confidentiality doesn’t apply to certain probate matters. Nevertheless, attorney-client confidentiality demands that the protection of most of your other attorney-client communications extends beyond the grave.
- Your lawyer can breach your confidentiality to the extent that you told them of your plans to commit a serious crime in the future. Your lawyer must alert the authorities. Nevertheless, you can confess to a prior crime without triggering this exception.
- Corporate counsel represents the corporation, not any particular individual within it, even the CEO or the Chairman of the Board.
- Joint representation: If a lawyer jointly represents more than one party (a husband and wife in a divorce proceeding, for example), neither party can involve attorney-client confidentiality against the other.
Your right to waive attorney-client privilege is an exception as well, in a sense.
It is the Florida Bar that imposes penalties on attorneys for violating the principle of attorney-client privilege. Penalties can range from a private reprimand (essentially a scolding) to permanent disbarment. Ordinarily, bar associations take the violation of attorney-client privilege quite seriously. Please note that almost any violation of attorney-client privilege also constitutes a violation of the attorney’s confidentiality obligation.
An attorney might also face professional malpractice liability for violating attorney-client privilege. Under certain circumstances, violating attorney-client privileges could contribute to criminal charges.
Talk to an Orlando Family Lawyer as Soon as You Can Schedule a Consultation
Family law problems tend to get worse before they get better. If you have a problem, or if you anticipate a problem in the near future, it is important to act quickly and thoroughly prepare for your day in court. Schedule a consultation with an experienced Orlando family lawyer as soon as you can.
Contact the Orlando Family and Divorce Law Firm of Conti Moore Law Divorce Lawyers, PLLC for Help Today
Conti Moore Law Divorce Lawyers, PLLC
815 N Magnolia Ave Suite 100
Orlando, FL 32803