Words like “secret,” “confidential,” and “privileged” sound like they should apply to the plot of a spy movie, but they describe something much more routine: communications between clients and their personal injury lawyers in Redding, CA.
Clients must be honest with their lawyers so that lawyers can provide the best legal representation possible. The attorney-client privilege exists so that clients will feel comfortable sharing information without fear that it will spread beyond the client and the lawyer.
Attorney-Client Privilege Explained
Attorney-client privilege is a rule of evidence preventing attorneys from sharing what clients tell them. This privilege applies when four elements exist:
- A client communicates with his or her lawyer.
- The goal of the communication is to get legal advice.
- The lawyer is acting in his or her professional capacity as a lawyer.
- The communication is made in confidence, and the client expects the communication to remain confidential.
When the attorney-client privilege applies, lawyers cannot reveal what a client tells them. Even a court cannot compel the lawyer to tell. The client has the privilege of refusing to reveal information that falls within the definition of the privilege. The decision to assert or waive this privilege rests with the client, not the attorney. Exceptions do exist, though, as described below.
Understanding When The Privilege Applies
All four elements must exist for the privilege to apply. Importantly for victims of personal injury accidents, the first element exists during an initial client consultation. If the communications occurred so a potential client could decide whether to retain an attorney, the conversation is privileged, even when an official attorney-client relationship doesn’t exist.
“Communication” includes in-person meetings, phone calls, electronic communications, and hard copy letters and documents. The communication must be about a legal matter. Attorney advice about other matters, such as business advice without a legal angle, is not protected by the privilege.
A communication is made in confidence when it occurs in private. For example, a meeting at a lawyer’s office is private, while a lunch in a restaurant is probably not. The privilege can extend to people other than the client and lawyer if the others are reasonably necessary to achieve the purpose for which the attorney was retained. This means that an interpreter or a paralegal can be present, but a friend of the client who is lending emotional support cannot be present.
Exceptions To Attorney-Client Privilege
While the attorney-client privilege is broad, two key exceptions exist. The situations where these exceptions would arise revolve around a client telling the attorney of crimes they intend to commit. While personal injury lawyers in Redding, CA rarely see this, the crime or fraud exception would arise if an accident victim planned to inflate damages or lie about accident-related expenses. It would also apply if a client intended to fake an accident to obtain an insurance settlement. In these examples, attorney-client privilege would not apply to communications related to the planned insurance fraud.
Waiver Of Attorney-Client Privilege
One of the most interesting aspects of attorney-client privilege is how easily it can be waived. While it is a strong protection when it applies, a client can waive it inadvertently. A lawyer cannot waive the privilege because the privilege belongs to the client.
How would a client unintentionally waive something as important as the attorney-client privilege? The privilege is waived when a substantial part of the communication is revealed to someone other than the client and the lawyer (or a reasonably necessary additional person). For example, waiver occurs when an accident victim posts information on social media about the case that includes the lawyer’s advice or the victim’s side of the story. Waiver is also likely to occur when an accident victim communicates with a lawyer through a work email account after the employer has clearly stated that employees have no right of privacy in their email and everything shared through the email account is the property of the employer and subject to search. Waiver might occur when a client calls the lawyer from a coffee shop or other public place where others are likely to hear the conversation. Even sharing about the case over the dinner table can be considered waiver, if the client reveals details about what occurred between the client and lawyer.
Preserving The Attorney-Client Privilege In Personal Injury Cases
The attorney-client privilege is a critical tool for building a persuasive personal injury case. An accident victim’s honesty helps the attorney understand details about the accident and its impact on all aspects of the victim’s life.
Experienced personal injury lawyers in Redding, CA help their clients understand when the privilege applies, what it covers, and how to preserve the privilege. The attorneys at Reiner, Slaughter, McCartney, & Frankel protect their clients’ rights, including their right to keep attorney-client communications private. Preserving the privilege helps attorneys and clients build compelling personal injury cases for maximum compensation.