Attorney, client relationship explained

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One of the key aspects of the attorney-client relationship is that of privileged communications.  Most everyone has heard of these concepts, but they bear repeating given their significance and the consequences of improper disclosure.

Once an attorney-client relationship has been established, and under many circumstances even prior to a formal arrangement, whatever an attorney and client, or prospective client, discuss is both confidential and privileged.  The distinction is somewhat subtle, but important.

Confidentiality is a bedrock principle which dictates that in the absence of consent from the client, a lawyer must not reveal any information relating to representation of the client.  Clearly, this is one of the most important factors in establishing trust within the attorney-client relationship. 

Privilege, which is sometimes referred to within the legal world as testimonial privilege, springs from the law of evidence and is part of the law in all fifty states and within the federal court system.  The client is the one who holds the privilege, and it applies in judicial and administrative proceedings in which an attorney may be called to testify as a witness or where the attorney is required to produce other evidence relating to a client.  Without the client’s waiver, which is  a voluntary relinquishment or surrender of the privilege, a lawyer may not disclose the confidential information discussed above.

In a situation where a client’s confidential information is disclosed without the client’s knowledge or consent, and where no waiver has been obtained, there is a risk that a client or a client’s case may be prejudiced.  Every attorney has had these rules and principles drilled into their heads from day one of law school.  As a result, clients may rest comfortably in the knowledge that an attorney is well-versed on this issue and is extremely unlikely to disclose anything about the client’s case.

However, there are very limited circumstances where confidentiality and privilege may be suspended or do not apply.  For example, an attorney may disclose information learned in confidence where the attorney has reason to believe that someone is imminently at risk of death or serious bodily harm.  There are other very limited exceptions as well, and where a client has any concerns or questions they should speak to their attorney about them.

Lack of trust creates a wall which makes an attorney’s job very difficult.  An open and frank relationship and dialogue between an attorney and client are vital to establishing that trust.  The principles of confidentiality and privilege are the door within the wall, and can make the difference between winning and losing a case.