Puja Sachdev | December 10, 2021 | Family Law

It can be difficult to disclose sensitive personal information to a stranger. Therefore, when you decide to talk to a family law attorney, you want to know that what you say will be held in confidence. You may not want your partner to learn about what you say to a lawyer.

Attorney-client privilege can give you peace of mind. You can discuss sensitive topics about your children and your marriage freely with an attorney. 

What is Attorney-Client Privilege?

Privilege applies to some types of evidence in a court case. Privileged evidence is private. It is not subject to discovery or disclosure by the court or other parties.

Attorney-client privilege is your legal right to have private and confidential conversations with your attorney. A reason for attorney-client privilege is to encourage clients to disclose all case information to their lawyers. Attorneys cannot effectively represent their clients if they do not have all information relevant to the case.

Another reason for attorney-client privilege is to protect your right to not incriminate yourself. For example, you may tell your attorney something that could be used in court against you. You do not want the other party to be able to compel your attorney to disclose that information. 

Therefore, when attorney-client privilege applies, your lawyer cannot be forced to disclose information you said to the attorney in confidence. Likewise, you cannot be forced to testify about what you said to your lawyer in confidence. 

What Requirements Must Be Met for Attorney-Client Privilege to Apply?

Before attorney-client privilege may apply, the following requirements must be met:

  • The communication was between a client or potential client and a lawyer
  • The lawyer acted within their professional capacity 
  • The reason for the conversation was for the person to receive legal advice from the lawyer
  • The potential client or client has a reasonable expectation that the information disclosed to the lawyer will remain confidential

There has been some debate about whether attorney-client privilege applies during consultations with a lawyer. The person has not retained the attorney to represent them in a legal matter at that time.

However, many sources argue that the above requirements can be met during a consultation. As long as the person discloses information to the lawyer to seek legal advice, attorney-client privilege applies. 

Therefore, your conversation should remain private if you meet with an attorney to ask for legal advice regarding a family law matter. Confidentiality would apply when seeking legal advice about:

How can you protect your right to privacy when meeting with a lawyer? Before you disclose sensitive personal information, discuss attorney-client privilege with the lawyer. Ask the attorney specifically if the information discussed during your consultation remains private and confidential.

Can Attorney-Client Privilege Be Waived?

There are some instances where attorney-client privilege could be waived. In those cases, the court or the other party may discover information disclosed to a lawyer by a client. 

A client can voluntarily waive privilege at any time. Also, attorney-client privilege may be waived by a corporation’s current management. If a third party is present and listening to the conversation, privilege may not apply because the conversation is not private.

There are exceptions to privilege for some situations. Exceptions to attorney-client privilege include:

  • A client dies, and the person’s heirs or alleged heirs enter litigation over the person’s estate.
  • A person seeks legal advice to commit a crime or fraud. (If the crime has already been committed, attorney-client privilege should still apply.)
  • The Bureau of Prisons may listen to conversations between attorneys and their clients when there is a reasonable suspicion that the client is using privilege to commit acts of terrorism.
  • When an attorney represents two clients regarding a mutual matter, and the clients have a future dispute regarding the mutual matter. Neither client can claim attorney-client privilege pertaining to the joint representation.

Not all information an attorney has about their client is privileged. For example, general information may be accessed through discovery. Likewise, information that can be accessed through an independent source is not privileged information. 

The information must be conveyed by private and secure means to be privileged. Emails from public computers and statements on social media are generally not privileged. 

Honest, Accurate, and Complete Disclosure is Essential in Family Law Cases

Family law matters may involve embarrassing, hurtful, and sensitive topics and information. As a result, it may be extremely difficult to discuss some information with your lawyer. 

However, your family law attorney needs to know all of the information you have about a matter. It is necessary to provide the best legal representation possible.

Remember, your attorney represents your best interest and the best interest of your children. Therefore, providing your lawyer with accurate, honest, and complete information allows them to build a stronger case to achieve your desired outcome.