Attorney-client privilege is a legal privilege that keeps confidential communications between an attorney and their client private. Verbal and written communications made to and by a lawyer in the presence of a third party may not be entitled to this privilege because the communication is no longer deemed confidential.
Frequently Asked Questions:
Q: What is the purpose of the attorney-client privilege?
A: This protection exists to encourage clients to fully disclose the details of their case and/or legal issue(s) without the fear that such information will be revealed to others. This full disclosure allows the attorney to provide accurate and competent information to the client so that the attorney and client can work towards a solution.
Q: Does the attorney-client privilege apply to potential clients?
A: Yes. The attorney-client privilege applies in situations where: 1) a non-client seeks legal advice, 2) the non-client reasonably relies on the advice as legal advice, and 3) the attorney does not attempt to dissuade the non-client from relying on the advice.
Q: I met an attorney at an event and my friends and I began asking her legal questions. Is my communication with the attorney confidential and does the attorney-client privilege apply?
A: No. The communication was not confidential because the conversation took place in front of your friends. Your friends' presence (third parties) destroyed any confidentiality you would have had with the attorney. The attorney-client privilege does not apply.
Q: I sent an email to my attorney, and my attorney responded with her paralegal copied on the email. Is my communication with my attorney still covered by attorney-client privilege?
A: Yes. Rule 5.3 of the American Bar Association's Model Rules for Professional Conduct addresses the responsibilities regarding nonlawyer assistance. Rule 5.3, which applies to paralegals and legal assistants, verifies that anyone working under the direction of a lawyer must make assurances that their, “conduct is compatible with the professional obligations of the lawyer.” This means that attorney-client privilege is preserved even when your attorney's staff is copied on emails.
Q: My parent speaks a different language than the attorney. The attorney and I speak the same language. Is there still an attorney-client relationship between my parent and the attorney if I am present during the meetings and serving as an interpreter?
A: Yes. The law has permitted this type of assistance. As an interpreter, you are there to “further the interest of the client” and this is permitted under the California Evidence Code.
Q: I was talking to my attorney on speakerphone and my significant other/partner was listening to my conversation with my attorney. My significant other/partner was there to provide me with emotional support. Is my communication with the attorney privileged?
A: If your significant other/partner is a client, then there is still an attorney-client privilege. If your significant other/partner is not a client, then the communication is no longer confidential and the attorney-client privilege is waived (eliminated). Your significant other/partner will likely serve as a witness in the case and could be questioned about the communications you had with your attorney.
Q: I am married and I do everything with my spouse. My spouse joined me at a meeting that I had with my attorney. I assumed this was okay because spouses have special privileges, right?
A: It depends. In California, the spousal privilege gives a person the right not to testify against their spouse in a criminal jury trial or disclose confidential communications with their spouse during the time they are/were married. It is important to note that this privilege applies to criminal matters. If your case is not a criminal matter, it is unlikely that the spousal privilege applies.
In civil cases (like employment cases), there are situations where a spouse may testify against a spouse that is a party to a lawsuit and the communication between the spouses will not be privileged. See California Evidence Code section 973. A spouse's presence in a meeting does not provide an indispensable service, such as serving as an interpreter. Additionally, the non-client spouse will likely serve as a witness in the case and could be questioned about the communications you had with your attorney.
Q: Are there exceptions to the attorney-client privilege?
A: Yes. The attorney-client privilege will not apply in situations where the client is having a conversation with her attorney regarding planning or furthering an ongoing crime or fraud, or a crime or fraud that has not yet happened. Additionally, the attorney-client privilege does not apply if your attorney believes that keeping the communication private would result in death or significant physical harm to someone.
Q: Can I waive or eliminate the attorney-client privilege?
A: Yes. You can eliminate the attorney-client privilege by disclosing a significant part of the privileged communication between you and your lawyer to a third party or by consenting to the disclosure of that privileged communication by anyone else.
If you have any questions regarding your company's policies or need guidance on California employment law, contact the Law Office of Catherine Chukwueke and schedule a consultation. We are here to help you navigate the complexities of employment law with confidence.
Disclaimer: This article has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice.
