Attorney-client privilege is a hallmark of American jurisprudence and a violation of that privilege can lead to severe penalties for the attorney who violates it. I take that privilege, really, a relationship seriously and a matter of sacred trust. However, is it inviolable? Is it like the Catholic priest-penitent relationship where a priest can’t even divulge whether or not the person confessed to the priest? Does it extend beyond the life of the case? These are good questions to ask, especially if you’re about to meet with a lawyer about a divorce, a criminal matter, or a bankruptcy.
In the ordinary circumstance, the attorney-client privilege is pretty much inviolable. When an attorney agrees to represent someone-either verbally or by written agreement, it’s pretty much a given that what that person tells the attorney is held in the strictest confidence. The far majority of situations fall into this category.
But what about those extraordinary circumstances? The American Bar Association analyzes this an offers their perspective:
“Exceptions to attorney-client privilege may arise when there is an overriding public
policy, as enunciated by the court or a fiduciary responsibility to another party, such as a
shareholder. A “crime-fraud” exception to the privilege allows disclosure of information
communicated by the client in an attempt by the client to use the lawyer’s services to
commit or cover up a crime or fraud. The exceptions to the confidentiality rule vary
somewhat from state to state and reflect different weightings of the balancing process between the
several societal goals involved. Most jurisdictions make a specific exception in their ethics rules to permit
disclosure that will prevent death or substantial bodily injury. In addition, the ethics rules in most
jurisdictions permit and sometimes require a lawyer to disclose information in order to
prevent and/or rectify the consequences of a crime or fraud that injures the financial or
property interests of another. The crime-fraud exception to confidentiality differs somewhat from the
attorney-client privilege crime-fraud exception, in that it is tied to substantial injury and addresses
rectification. Other exceptions to the confidentiality rule include disclosure that is authorized by law,
disclosure impliedly authorized by the client in order to effectuate the representation,
disclosure for the lawyer to seek legal ethics advice and disclosure by the lawyer in self-defense against
a claim by the client.”
The good thing is that the attorney-client privilege is permanent and survives the death of the client. Unless there are exception circumstances, courts are hesitant to void an attorney-client privilege once it is asserted.
Of course, with the recent problems of our President, John Dean has been making the media rounds talking about Watergate and his famous (or infamous, depending on your perspective) testimony that brought down Richard Nixon. Dean himself has questioned whether he actually breached the privilege. He was in fact the attorney for the “office” of the president, not the President himself.
While attorney-client privilege has some nuances, it remains a bedrock of US jurisprudence. Personally, it will be a cold day in hell before I violate a client’s trust and confidence.