There are a couple of surefire ways for attorneys to find themselves disbarred. One is to violate attorney-client privilege. This happens to be one of the things I get asked about the most by truck drivers. It often comes in the form of, “You won’t tell my wife/husband/significant other I got this ticket, right?”
There seems to be a misconception that absolutely everything you say to your attorney is protected by attorney-client privilege. While most A/C discussions are protected, the protection is not universal.
The A/C privilege concept dates to Queen Elizabeth and English common law and was first recognized by the U.S. Supreme Court in 1906. After more than a century of legal fine-tuning, here, in very simplified terms, is what makes a conversation qualify for this protection: (1) you are a client; (2) I am a lawyer; (3) the disclosure is not related to intention to commit a crime; and (4) you claim the privilege.
Of course, the courts have carved out exceptions to A/C privilege. (Hey, it’s what they do and it keeps lawyers employed.) The most common involves the third element, plans for criminal activity, and is the most cited. There are other situations, such as certain fiduciary exceptions (think trust and estate cases), but I want to focus on the crime aspect.
The crime-fraud exception arose in a U.S. Supreme Court case over 100 years ago. The exception basically covers communications that further a crime, tort or fraud. In other words, if you are silly enough to discuss your future crime spree with your attorney, it is not privileged.
In addition, there are others ways that A/C privilege can be lost ... or waived. The most common way that I see drivers waive the privilege is by disclosing it to a third party. Think of A/C privilege as a secret between you and your attorney. The more people know the “secret,” the less likely the court is to consider the information privileged.
So don’t tell you friends. Don’t forward the email where you discuss your case with your counsel. If you have a question about forwarding a document or an email, ask your attorney.
Another exception: A/C privilege extends only to legal advice, not business advice. Keep that in mind before you seek advice on how to implement your business plan to leave your employer and start a rival trucking company.
Of course, the difference between legal advice and business advice can be blurry. Ultimately the judge will make that determination. So be careful with what you say and always discuss with your attorney beforehand if the communication is privileged.
Discussions of previous acts are generally subject to the A/C privilege. For example, if a driver says to me, “I know the speed limit is 35 mph in town, but I have never seen a police officer here, so I normally drive 60 mph.” This is a previous act and is likely protected by A/C privilege. Similarly, a driver’s statement that he “may have falsified his logbook in the past” or “lied about his assets during a divorce” would likely be protected.
However, as mentioned above, potential future acts are a different story. If a client tells his lawyer of his intent to commit fraud or a crime, it would not be protected. If a driver says he’s going to “kill the guy” with whom his wife is having an affair, it’s not protected.
In addition, most states allow – or require – the attorney to disclose information obtained from a client that could prevent death or serious injury. Several states have a similar rule addressing disclosure of information to prevent fraud, crime or financial injury.
There are other wrinkles to this topic, but I’ll stop here. If nothing else, remember two things: 1) Some conversations with your attorney might not be protected. 2) If you have concerns about any communications regarding your case, ask your attorney.