FAQ: Understanding Lawyer Client Confidentiality

Whether a criminal defense attorney, a civil attorney, or just a normal person on the street, almost everyone has heard of and has a vague idea regarding what the attorney-client privilege is. If we haven’t dealt with it directly in our own lives then we’ve almost certainly had the opportunity to see it in action on television or in the movies.

But what is the attorney-client privilege really? Does it mean that when you tell a lawyer something that they can’t tell anyone no matter what? And when does it begin? Do you have to hire the attorney? And when does it end? Will a lawyer really take your secrets to their grave? Read on to have these questions answered.

Let’s start with what the privilege means. And, since I am a Colorado criminal defense attorney, we’ll use it in the context of criminal law, even though it applies to other areas of the law equally. The attorney-client privilege is the idea that everything you tell your lawyer, in private (when just the two of you are present) is confidential. This means the attorney cannot tell anyone what you have talked about. They can’t tell their wife, they can’t tell their buddies, they can’t tell the judge, even if ordered to do so. The only time they can divulge the information you’ve told them is to commit the future commission of a crime or the loss of life or property of someone. It is a very powerful privilege.

And the best thing is, the privilege starts right when the lawyer first answers the phone for a free consultation – or responds to an email query or when you walk in the door. You don’t have to have retained the attorney for the privilege to attach. It happens automatically, and even if you don’t hire that attorney, they still have to keep your secrets safe.

Let me give you an example to show you how powerful it can be. Let’s say you are looking for a divorce and you go talk to a lawyer about it. You tell him all about your situation and what has been going on, he quotes you a fee, and you tell him it’s too expensive and go find someone else. A week later your wife comes in and wants to talk to a lawyer about a divorce. The attorney not only can’t take the case because he’s already talked to you and representing the wife would create a conflict, but he can’t tell the wife why he can’t represent her! The wife would simply be sent away. That’s how powerful the privilege is.

And the privilege outlasts even your life. Your secrets die with the attorney. In the criminal law context there are examples of people who have confessed to murdering people (it isn’t the commission of a future crime so it is confidential) to their attorney, another person is tried and convicted of the murder, and the attorney never told anyone about the confession (it obviously later came out, but not in any way that affected the client). So, essentially, your secrets are safe.

There is good reason behind this privilege – your criminal defense lawyer must know as much about your case as possible to give you the best defense possible. Without your information and candid conversation, that is nearly impossible. So, the next time you are with your lawyer, don’t be afraid to speak up. Your secrets are safe.