Brian White | November 12, 2021 | Personal Injury
When you meet with a personal injury attorney to discuss your case, you may disclose sensitive personal information. However, as your case progresses, you may want to ensure that the discussions between you and your lawyer are confidential.
Attorney-client privilege can give you peace of mind. It can also give you confidence that the discussions with your Houston personal injury lawyer will remain private.
What is Attorney-Client Privilege?
Attorney-client privilege is the legal right to keep your communications with your attorney confidential. Your discussions with your lawyer are not subject to discovery or disclosure in a legal proceeding. Privilege ensures that when you seek legal advice from a lawyer, your secrets remain private.
Another reason to make attorney-client communications privileged is to encourage honest, accurate, and complete information. To provide the best legal representation for a client, an attorney needs to have all relevant facts and information. If a client withholds information for fear of someone learning about what they said, it could impact the quality of the legal services provided by the lawyer.
Generally, when attorney-client privilege applies, an attorney cannot be forced to disclose information they received in confidence from a client. Furthermore, the attorney cannot voluntarily disclose information told to them in confidence. Likewise, clients cannot be forced to testify regarding information the client discussed with their attorney while seeking legal counsel.
The following requirements must be met for attorney-client privilege to apply:
- The communication was between the lawyer and the client or a potential client
- The purpose of the conversation was for the individual to obtain legal advice
- The lawyer acted in his professional capacity
- The client or potential client expects that the information disclosed will remain confidential
Before privilege can exist, there must be an attorney-client relationship. There is much debate when the attorney-client relationship begins. Of course, if a person signs a retainer agreement with the lawyer, the attorney-client relationship exists.
However, does an attorney-client relationship exist during an initial consultation? Some sources argue that a relationship does not exist because the person has not retained the law firm. Yet, if the meeting is to seek legal advice and the attorney offers legal advice, a judge might find that the parties met the requirements for privilege.
What should you do to protect your right to privacy? Before disclosing sensitive or private information, ask the attorney if privilege has attached to the conversation. Confirm that what you discuss with the lawyer remains confidential before discussing any private information with the attorney.
When Can Attorney-Client Privilege Be Waived?
There are few exceptions to attorney-client privilege. A client may waive privilege to allow the attorney to disclose confidential information. If the client is a corporation, the current corporate management has the authority to waive privilege.
If a third party is present during the conversation between the client and the attorney, privilege generally does not apply. Attorney-client privilege covers private conversations between the lawyer and the client. A third party listening to the conversation destroys the privilege.
Common exceptions to privilege include:
- Seeking legal advice from an attorney to assist with the furtherance of fraud or a crime. However, if the crime has been completed, discussions between a client and his lawyer remain privileged.
- When a client dies, privilege may be breached during litigation between the client’s heirs or other parties claiming to be heirs.
- If an attorney represents two parties in a legal matter, neither party can claim attorney-client privilege against the other party in future litigation pertaining to the matter of joint representation.
- A corporation’s shareholders may pierce the attorney-client privilege between the corporation and legal counsel.
- The Bureau of Prisons Rule came about out of the USA Patriot Act after the 9/11 attacks. It allows for monitoring communications between an attorney and their imprisoned client if there is a reasonable suspicion that the client will use privilege to facilitate acts of terrorism.
In addition to the exceptions to attorney-client privilege, some matters are not covered by privilege. For example, general information may not be protected from compelled discovery. The other party may request dates of meetings, people present at meetings, and the date you retained the attorney.
It is also important to remember only private communications with your attorney qualify for attorney-client privilege. Therefore, posts on social media accounts and emails from public computers may not be privileged. However, communication through secure electronic means is generally protected by privilege.
Should I Tell My Personal Injury Attorney Everything?
As discussed above, an attorney cannot provide quality legal services if the client hides information from the client. The last place an attorney wants to learn damaging information is during a trial or hearing. It is also not good for your attorney to learn facts during your deposition.
If the lawyer knew about the information in advance, there might have been options for addressing the damaging information. However, hearing the information for the first time with a jury or defense counsel is too late to do anything.
Withholding information from your personal injury attorney could result in a less desirable outcome.
Examples of information that you should always tell your personal injury lawyer include:
- Prior accidents and injuries
- Pre-existing health conditions
- All symptoms you experience after an accident or injury
- Previous personal injury claims you filed
- Injuries sustained after the accident that is the subject of the current case
- If you anticipate filing bankruptcy or have filed bankruptcy
- If you are going through a divorce or anticipate separating from your spouse
- Any criminal history
- Whether you could potentially have some fault for the cause of your injury
Telling your lawyer everything that could relate to your injury case is crucial. Full disclosure allows your attorney to develop a strategy to address all aspects of your case. He can address both the weaknesses and the strengths.
If you are not sure whether a detail is important, tell your lawyer. Your conversations with your attorney while seeking legal advice are protected by attorney-client privilege. Therefore, if the information is not relative, it should remain confidential between you and your lawyer.