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Attorney Client Privilege & Confidentiality Explained

You may have heard the terms privilege and confidentiality thrown around in conversation or on television either in crime dramas or on the reality court shows but do you really know what they mean? These terms refer to the duty of a lawyer to keep client secrets and it is important for you to know about these terms, what they mean to you as a legal client and how they can be waived; sometimes without you even being aware.


First there is privilege. Privilege refers to an absolute guarantee of non-disclosure. This protection is reserved for attorney client communication. An example would be you write a letter to your attorney communicating a set of facts. This is a communication between a client and their attorney and is privileged. Not even the court will compel disclosure of the letter's content unless the client has “waived” his or her right of privilege or they have called the attorney's performance into question. An example of the issue of waiver would be if the client discussed the letter or it's content with someone other than their lawyer thus destroying their expectation of privacy. It is crucial that you do not discuss your case with anyone other than than your lawyer or their authorized agent (and then only with the permission of your lawyer.) Second is the issue of a client calling the attorney's performance into question. The best example of this is when you sue an attorney for malpractice of report them to the disciplinary board of the jurisdiction. In such a circumstance it is accepted that the attorney may need to disclose items normally confidential in order to defend themselves; thus the plaintiff (client or former client) is considered to have waived.


The second term, confidentiality, is much broader. Confidentiality covers anything else that is a part of your case that passes through the lawyers office or becomes a part of their knowledge. A lawyers notes, a diary that you may have dropped off at the office, an accounting report prepared for the case, etc. are all considered to be confidential and shall not be freely disclosed. The exceptions to this are court order, law, rule of court or, of course, waiver of the client (see above.) In these cases they attorney may have to disclose information to the court or other party.


DISCLAIMER: The information included on this Website, facebook, myspace, twitter, or linkedin is not legal advice. No Attorney-Client relationship is formed by the use of any information found on these sites, or the submission of information via any form on this Website. Any information on this website should not be relied upon without consulting an attorney who is licensed to practice in the jurisdiction of your legal matter. Mark F. Nichols is licensed in the State of Indiana and the Seventh Circut, Northern and Southern Districts. Copyright 2011, The Law Office of Mark F. Nichols. All Rights Reserved.