Attorney-Client Privilege: A Guide to Confidentiality in Legal Relationships

Attorney-client privilege is a fundamental component of the U.S. legal system. Without it, a person accused of a crime could not confidently share details with their lawyer. Likewise, corporate clients couldn’t freely seek legal advice, and lawyers might be compelled to testify against their clients. 

The net result would be a chilling effect on legal communication, damage to fair-trial rights, and reduced compliance. But why are these confidentiality protections so important, and do they always apply? Let’s explore these key questions, along with some tips for how firms can uphold legal privilege.

What Is Attorney-Client Privilege?

Attorney-client privilege dictates that communication between clients and their lawyers should be confidential, especially when clients seek legal advice or services. While there are a few exemptions, safeguards for attorney-client confidentiality are fairly comprehensive. Generally, lawyers cannot share information clients disclose when seeking advice, nor can they be forced to share that information with others. 

This basic right encourages honest, open communication between clients and their lawyers. Clients don’t have to fear that what they say will be disclosed to others, and attorneys can provide better counsel. Most importantly for criminal cases, privilege protects clients’ rights to legal counsel under the Sixth Amendment.

A Look Back at Legal Privilege

Attorney-client privilege has a long history in legal tradition, dating back to the Roman Empire and English common law. In the U.S., privilege was declared official in 1807 when Chief Justice John Marshall affirmed that confidential communications between a client and their lawyer should be protected from disclosure except in specific circumstances. In Upjohn Co. v United States (1981), it was even broadly applied to all communication between a company’s lawyers and all its employees, as long as those communications met the other tests of legal privilege. 

Today, the protection of privileged and confidential communication between attorneys and their clients is codified in Rule 501 of the Federal Rules of Evidence and recognized in all 50 states (with some variations). The principle is also enshrined in the code of ethics for legal professionals, as in Rule 1.6 of the American Bar Association’s Model Rules of Professional Conduct.

When Does Attorney-Client Privilege Apply?

The rules for attorney-client confidentiality are based on the 5 Cs: Communication between a Client and Counsel, made in Confidence, and involving legal Counsel is generally protected. For the most part, any confidential exchanges between attorneys and clients in the context of providing legal advice are safeguarded.

Those protections cover all types of communication, from emails and texts to calls and in-person communication. Any notes or documents you and your attorney share when exchanging advice would also be included, as would transcripts of your conversations. In most cases, they’ll stay protected even after a case ends or you seek different representation, or even if you pass away.

Implied vs. Contractual Relationship

A formal contract between a lawyer and their client isn’t always required to establish attorney-client privilege. All that’s needed is an implication that the client is seeking legal advice, and the attorney is providing it. So, that question you asked the lawyer at the party about a legal issue you’re facing? If she offered guidance, that may be enough to trigger attorney-client confidentiality protections.

That said, it’s always better to get legal agreements in writing. A formal representation agreement or legal retainer removes all doubt that any confidential information exchanged is legally protected. Such contracts may even explicitly define the scope of those protections.

State and Jurisdiction Differences

The core principle of protecting confidential legal communications between a client and their attorney applies universally. However, states have different definitions of who qualifies as a client, what types of communications are protected, and when privilege can be waived.

For instance, states may vary in terms of whether privilege continues after a client dies (California is stringent on protecting this). Likewise, rules differ on whether accidental disclosure eliminates privilege (Florida is much less forgiving than many states, for instance). Federal rules about privilege apply in federal courts, but they may default to state laws in some instances, such as diversity cases involving parties from different states or counties. 

Can Attorney-Client Privilege Be Waived?

Attorney-client privilege can be waived in some circumstances. For instance, if a third party is present in a meeting between a lawyer and their client, legal privilege may not apply. The same is true if the client forwards a confidential email from their lawyer to an outside party.

In some cases, privilege can be waived through inadvertent disclosure, such as accidentally including someone in an email, if the client didn’t take reasonable steps to prevent or correct the error. And any time you use an attorney’s advice as a defense in court, you risk voiding any protections of privileged communication. For instance, if you tell a judge your attorney said your evasion of taxes was legal, you may be required to fully disclose any related communications in court.

It’s important to emphasize that only the client can waive privilege. Apart from a few exceptions, the attorney is always bound to confidentiality until the client gives explicit consent or implies it by their actions.

Exceptions to Lawyer-Client Confidentiality 

While attorney-client confidentiality is vital for fostering a healthy legal system, that doesn’t mean it’s always protected. Attorneys are authorized to disclose information in instances such as:

• Seeking advice for the purposes of committing a crime or fraud
• Legal malpractice accusations or fee disputes between a client and their attorney
• Sharing information that threatens significant future harm or certain death to another person
• Asking for non-legal advice, such as business or financial guidance

Remember, attorney-client privilege applies to communications with counsel. That means certain types of evidence, such as physical objects you hand to your attorney, may not be protected from disclosure. If you tell your lawyer where you hid a murder weapon, the location itself may not be protected, even if your communication about it is.

How Lawyers Can Preserve Trust

Attorney-client privilege may be embedded in the American legal system, but the onus to uphold it rests on legal professionals. Lawyers should always begin any client relationship by clearly explaining the scope of privilege and confidentiality, including what’s protected and what exceptions may apply. From there, they can build rapport through active listening and consistently reinforcing their commitment to confidentiality.

Attention to disclosure laws and rules is critical, but only a starting point. Lawyers must also demonstrate ethical due diligence. That means following professional conduct rules, documenting client consent before disclosing information, and knowing when limited disclosures are legally required. 

Complicating the situation is an undeniable fact: Confidential information no longer lives only in attorneys’ heads or file boxes. It’s preserved in numerous digital forms. Still, a lawyer’s reliance on legal tech shouldn’t undermine client confidence that their information is secure. When clients share sensitive details, attorneys should use secure communication methods (like encrypted email) to protect the information, limit access to sensitive material, and maintain strong digital security protocols. 

Legal teams must also exercise care about the legal tech they choose, only entrusting confidential data to tools that demonstrate a comprehensive commitment to data security and confidentiality. Rev’s AI Notetaker, for instance, can drastically improve the process of gathering critical client information while ensuring that info is fully secure with end-to-end encryption and HIPAA* and SOC 2 Type II compliance.

Protect Legal Privilege With Rev

Every trained legal professional knows the value of proper attorney-client communication. Protecting this fundamental principle is vital for safeguarding client relationships and building trust in your firm. The best legal tech supports those goals and strengthens your ability to uphold client confidentiality. 

With Rev, you never have to worry about whether sensitive information is secure, even transcripts of your conversations are fully protected. Whether you use our human or AI transcription services, Rev will always notify you if someone requests a copy of your documents. We’ll never share them without permission, and we’ll emphasize that the materials are for your eyes only. 

That’s the kind of assurance you get when you rely on a service provider who values attorney-client privilege as much as you do. Explore our legal solutions to learn more.

*HIPAA compliance is available for Enterprise plans only.