When Is The Attorney-client Privilege Not Applied?

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Last time, we discussed the history and effect of the attorney-client privilege, an important facet of our legal system and one that allows clients the freedom to speak openly with their counsel and receive the full benefit of the legal advice. Yet, not everything that a client communicates with her attorney is considered privileged. There are times when important public policy concerns override the value of the privilege. Below are a few circumstances in which the attorney-client privilege is not applied or is waived, meaning that the attorney would be able to testify about the client's statements.

  1. Non-legal advice. Only legal advice for a proper purpose is protected by the privilege. If you are asking your attorney about the wisdom of purchasing a particular house, this conversation would not be protected because the advice given by your attorney is not legal advice. Additionally, the face that an attorney is present in the room when a non-legal discussion is underway does not make that discussion privileged.
  2. Communication in the presence of a third party. Only private communication between the attorney and her client is protected, and the privilege is considered waived in the presence of a third-party. For instance, if a client forwards his attorney's email to a colleague, that email is no longer considered privileged. Additionally, cc'ing an attorney on a confidential email to someone else waives the privilege. If you ask a legal question at a cocktail party while in the presence of your friends, this certainly would not be privileged.
  3. Crime-fraud exception. When the purpose of a communication between the attorney and her client is to further the commission of a crime, tort, or fraud, and the crime, tort, or fraud is actually committed, then that communication is not privileged.
  4. Public domain. Information that is already available in the public domain is not considered confidential, and therefore, the privilege does not apply.

Keep in mind that as a client, you are the holder of the privilege. You can easily destroy the attorney-client privilege by recounting conversations to a family member, discussing the issues online, or even using a third-person's computer or email address to send confidential emails to your attorney. There are additional exceptions and nuances to the attorney-client privilege that will not be discussed in detail here, but the best thing for you would be to ask your attorney, in private, about how to maintain the privilege.

If you would like to speak with an experienced family law, , divorce, or criminal attorney today, please call our Concord, NC office today.

This article is for informational purposes only and should not be considered or substituted as legal advice.