Understanding the Limits of the Attorney-Client Privilege

Posted on November 9, 2020 in Personal Injury Claim Process

The attorney-client privilege is something that most people have heard about in some form or another. Typically, most of us see this referred to on police procedural shows or movies when an attorney refuses to speak to police officers about their client by claiming a special attorney-client privilege that prevents them from doing so.

This does, in fact, give us a general idea about attorney-client privilege. However, this concept is certainly not as glamorous as it is on the big screen. Here, we want to discuss what attorney-client privilege means when it comes to preserving the confidentiality of statements made by a client to their counsel. This attorney-client privilege rule is important to understand if you are working with an attorney or considering working with one for any type of legal case, whether that be for a personal injury issue, a criminal defense matter, a bankruptcy claim, and divorce, and more.

Defining attorney-client privilege

The concept of attorney-client privilege has been established for hundreds of years, and the earliest forms of this idea shows up in ancient Roman law. However, the basic concept that we use today for attorney-client privilege has always been recognized in Anglo-American jurisprudence.

Attorney-client privilege is the rule that preserves the confidentiality of communication between attorneys and their clients. This sounds fairly simple, but there are limits to this attorney-client privilege that some people tend to ignore.

The underlying principle of the attorney-client privilege rule revolves around the importance of a client being able to convey sensitive or confidential information to their attorney with the knowledge that their attorney will not turn around and discuss this information or be compelled by the court to discuss this information. Attorney-client privilege allows a client to be willing to communicate things that they would not otherwise wish to communicate. This, in turn, allows the attorney to have all the information they need to formulate a sound legal strategy on behalf of their client. It is always better for the attorney to know all possible information about the case before they head into the courtroom.

The limits of attorney-client privilege

An attorney-client privilege does not exist unless there is an actual attorney-client relationship. At first glance, this seems like an obvious statement, but many people blur the lines between a professional attorney-client relationship and casual relationships or conversations. What we mean by this is that many people assume an attorney-client relationship exists before one actually does. Thus, a person may end up telling an attorney information that is not actually protected by this privilege.

Determining when an attorney-client relationship has been established is typically not difficult. This usually happens after the attorney has expressly acknowledged that they are representing a client. This acknowledgment may happen in the form of a contract signed by the two parties, an oral agreement about the scope of the arrangement, an appearance of the attorney on behalf of the client in court, or an engagement letter.

However, many individuals assume that speaking to an attorney for advice, perhaps at a casual get together where there are common friends present, also constitutes attorney-client privilege. In most cases, any conversations made in this type of informal context will not be covered under the attorney-client privilege rule. Anything you say in conversations that are not covered under this rule will not be protected, and the Portland personal injury attorney could be compelled to testify about what you have said, or they could voluntarily discuss what you have told them with others.