Posted September 16, 2010 in
Demystifying the Law by
Jennifer King Comments
If you’ve ever hired an attorney, or even browsed articles or profiles on Lawyers.com, you’ve probably heard the phrases "attorney-client privilege" and "attorney-client relationship." We all have relationships with our doctor, dentist, banker, accountant and car mechanic. What makes the relationship between a lawyer and client any different from these other relationships? This article will attempt to demystify attorney-client privilege and the attorney-client relationship.
What Is an Attorney-Client Relationship?
In 1850, in the case Stockton v. Ford, the U.S. Supreme Court described the attorney-client relationship in a decision, writing:
There are few of the business relations of life involving a higher trust and confidence than that of attorney and client, or, generally speaking, one more honorably and faithfully discharged; few more anxiously guarded by the law, or governed by sterner principles of morality and justice; and it is the duty of the court to administer them in a corresponding spirit, and to be watchful and industrious, to see that confidence thus reposed shall not be used to the detriment or prejudice of the rights of the party bestowing it.
The attorney-client relationship can be expressed (meaning the attorney and client have come to a formal agreement of representation) or implied (meaning the client reasonably believes that the attorney is providing legal representation, even if no contract has been signed or retainer has been paid).
If you have a friend or family member who is an attorney, on occasion you’ve probably asked for informal legal advice. If the lawyer seemed reluctant to answer your questions, it may have been to avoid creating an informal or implied attorney-client relationship. Similarly, you may notice that attorneys include disclaimers in written communication with non-clients that specifically says, "This advice or communication does not create an attorney-client relationship." If you are at all unclear about it when talking to a lawyer, specifically ask the attorney whether you have an attorney-client relationship.
Even discussions in the Lawyer’s com community don’t create a attorney-client relationship.
What Duty Does an Attorney Owe to a Client?
Once an attorney-client relationship has been established, the attorney has several responsibilities to his client. Each state’s laws spell out a lawyer’s specific responsibilities, but these responsibilities generally include:
- Fiduciary duty: The attorney must have undivided loyalty to a client and cannot create a conflict of interest by representing another client whose position jeopardizes the lawyer’s loyalty to the original client.
- Confidentiality: The attorney must keep confidential any information the client supplies, unless the client gives the lawyer permission to reveal the information to others. This confidentiality requirement continues even if the client changes lawyers or otherwise ends his relationship with the attorney. (In fact, even if you meet an attorney and ultimate decide not to hire him, he must keep confidential anything you tell him during the preliminary consultation.)
- Competency: The attorney must be skilled and show good judgment when representing a client.
- Keeping the client informed: The attorney must keep the client up to date on developments in the client’s legal matter.
What Is Attorney-Client Privilege?
Confidentiality, also known as attorney-client privilege, is a significant aspect of the attorney-client relationship. According to the American Bar Association
"Attorney-client privilege is the right of clients to refuse to disclose confidential communications with their lawyers, or to allow their lawyers to disclose them. It is the client’s privilege, not the lawyer’s, and is the earliest known ‘privileged communication’ in the law. The attorney-client privilege is viewed as fundamental to preserve the constitutionally based right to effective assistance of legal counsel, in that lawyers cannot function effectively on behalf of their clients without the ability to communicate with them in confidence."
There are a couple exceptions to attorney-client privilege. For example, if a client tells his lawyer that he is going to harm himself or someone else (and if the attorney believes this is a serious threat), then the lawyer has an obligation to reveal the confidential information to prevent anyone from being hurt or killed. In addition, a client can waiveattorney-client privilege, giving the lawyer permission to share information with other people. Finally, if a client tells his lawyer something in the presence of another person (even a spouse), the information is not considered confidential.
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