As an attorney, it’s your duty to uphold the rights of your client. You will have to safeguard their rights and shield them from any legal wrongdoings.
However, do you know that there are some privileges you and your client are eligible for? Do you know that there is a privilege of confidentiality that safeguards your clients? We bet you didn’t.
Well, don’t worry, we’ve got you. In this article, we’ll talk about the intricacies of attorney-client privilege. We’ll know about where it applies and where it doesn’t.
Understanding Attorney-Client Privilege
The concept of attorney-client privilege was derived from the common law doctrines. It talks about the privilege in the legal profession and it also refuses you as a lawyer to disclose any confidential discussions between you and your client.
It is known to be one of the most traditional and oldest forms of confidentiality. The US Supreme Court assured confidentiality where the overall privilege applies to both you as an attorney and even your client.
The purpose of this privilege encourage the clients to openly share confidential information with their clients and let them effectively represent their clients. Once you’ve got the full information about the case, it becomes easier to address the shortcomings of your case properly and even get the verdict in your favor.
What is Kovel Standard According to US Laws?
The concept of attorney-client privilege is based on the Kovel standard of the case. In the case of the United States v. Kovel, the US Supreme Court came up with a Kovel Agreement to safeguard the confidentiality between clients and their attorneys.
The Kovel agreement is an arrangement when your client engages counsel and provides legal services. You as a counsel then engage different specialists like CPAs where you support taxes from your clients. These CPAs interpret the various aspects of technical accounting and interpret different financial and tax concepts. They interpret these in an easier and more understandable language to help the client.
Once the Kovel agreement gets drafted properly, these protections are then typically only limited to the interaction of the clients with the counsel. The Kovel Agreement thus thereby helps in extending the overall aspect of attorney-client and attorney work product privilege.
General Requirements of Attorney-Client Privilege
Although there are minor variations that differentiate from state to state, here are some necessary elements you require to establish a proper attorney-client privilege. Let’s see what they are:
· Proper communication between two privileged parties.
· The communication that takes place must be done in confidence.
· The attorney-client privilege is done for seeking, obtaining, and even providing necessary legal assistance.
Remember that these privileges apply in both oral communications and also when it comes to legal documentation as well. Other records that also reflect a valid communication like emails and other documents are also necessary documents for proving attorney-client privilege.
Suppose in a pre-existing document it conveys that the details between the client and the attorney are not privileged. In that case, the privilege doesn’t get effective as a result of that transfer. The contents of the document must however be privileged. This is also the case for emails. In this case, the parties can’t assert any sort of privilege over communication where they have just CC-d you as an attorney. Make sure that they know that like other communications, emails are the most protected form of privilege than anything else.
However, in corporate context, its sometimes even difficult to understand the purpose of some communications. The purpose of these particular communications aims at seeking fruitful legal assistance. These communications often have mixed business modules and the legal procedure has to tailor according to that.
Hence in corporate sectors, the attorney-client privilege should be asserted in an affirmative matter only by the client. Also, you need to keep in mind that the privilege is not waived by the clients in respect of communication issues.
Where Will The Privilege Not Apply?
You might think that the attorney client privilege might be something that is ultimate, however it isn’t. There are certain exceptions to it where the attorney-client privilege doesn’t apply. It’s not absolute in nature and American Bar Association has certain rules and regulations adhering to it.
According to the Model Rules of Professional Conduct, attorneys can sometimes even disclose confidential client information while representing their client. Hence, the legal staff is bound by these laws and by the same duty of confidentiality as their attorneys. As an attorney, you need to ensure that the paralegals and other support staff do not violate those privileges.
Sometimes, as an attorney, you should disclose valuable information during a dispute with your former client. Hence it is necessary at times for the lawyers to disclose information for the benefit of the client.
There are other ethical rules that one should abide by according to the ABA ethical rules. They are:
To prevent death or any kind of substantial bodily harm
These apply when the action is due from your side or not. If the client consults with an attorney on real estate but only via phone call, where they say that they’re on their way to murder someone, in this case, you as an attorney should reveal such information.
Minimize any substantial injury to someone else’s financial property due to a client’s crimes or fraud
Suppose your client has used your services that connect with the crime. In that case, you can reveal the attorney-client privilege to prevent any wrongdoings. However, it plays an exception when it comes to crime-fraud.
Determine if it is a conflict of interest with other clients or not
If you as an attorney join another firm, then it becomes a matter of conflict of interest. This only happens when you as an attorney join a new firm or be a part of a new merger.
Expose lies in different locations
Sometimes, you should reveal confidential information to the ABA if you get to know that your client might be committing perjury.
The client can waive attorney client-privilege either intentionally or by mistake. However, if your client grants you the waiver, it usually becomes permanent. That way,
the client might lose all the privilege to object to a discovery request that seeks privileged communications. Clients can even voluntarily waive privilege.
The concept of attorney-client privilege even varies from state to state. In the state of California, you do not need an attorney to reveal any information. However, do make full disclosures to your attorney before you deal with such legal issues.
Crime Fraud Exception
As we talked about what crime fraud is, let’s understand what they are. Crime fraud deals with crimes that are committed by your client with your help as an attorney.
In most cases, out of integrity, many attorneys will not cover for the mistakes of their clients. Hence, in this case, these clients would have a criminal case of their own. However, as much as you might trust your attorney, you should be perfectly candid in the court to prove your innocence.
On the other hand, you as an attorney shouldn’t indulge in furthering your client’s crime.
Final Thoughts
So there you go, you now know everything you had to know about attorney-client privilege. We hope this blog has guided you in a comprehensive manner about the ways an attorney-client privilege works.
We hope this blog was informative and helpful. Let us know if we have missed out on anything or not.
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Titas is a lawyer with a penchant for writing. In her leisure hours she likes to read books and collect Pokemon plushies and stay updated with different law judgements.
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