To create your best possible defense, your California criminal defense attorney needs to have as much information as possible – even if that information points to your guilt. How can you trust that this privileged information stays with your attorney?  California evidence code 954 guarantees attorney-client privilege, which ensures your information stays between you and your lawyer.

What is attorney-client privilege?

Attorney-client privilege began in English law in the 16th century as a way to bar attorneys from being forced to testify against their clients in court. For example, if a client admitted guilt to their counsel, the lawyer could not be compelled to disclose that information to the courtroom. Today, attorney-client privilege looks a bit different, but holds closely to the original principle. Attorney-client privilege applies not only to oral communication, but written communication in the forms of emails, letters and even texts. Almost any exchange between lawyers and someone seeking counsel or legal advice is protected under this code. However, the exchange must consist of confidential information that is kept confidential by the client. If a client breaks the confidentiality of their own information, attorney-client privilege can be extinguished, or lost.

Why is attorney-client privilege important?

Attorney-client privilege is important because it allows for honest and open communication between the client and their counsel. This candid communication allows the attorney to carry out their duties more effectively because they have all the information and can best build a defense to reach the best possible outcome. You want your criminal defense attorney walking into the courtroom as prepared as they can be.

What are some examples of attorney-client privilege?

The minute rules that accompany attorney-client privilege can be hard to follow. Check out this example that Harvard has available for its employees to understand how attorney-client privilege applies to members of an institution.

Example 1: “A former employee threatens to sue the University for wrongful termination. Professor Dunster, the employee’s former supervisor, writes a memorandum to University Attorney Eaton, requesting legal advice. He also sends a copy of his memorandum to Dean Chauncy. Both copies of the memorandum are privileged; the first as an attorney-client communication and the second because Professor Dunster is sharing a privileged communication with Dean Chauncy, who is a University official with a need to know about the threatened lawsuit by virtue of his responsibility for Professor Dunster and those who work for him. If, however, Professor Dunster writes a separate letter to Dean Chauncy concerning the employee’s allegations, this letter is not privileged and would be subject to disclosure in a lawsuit.”

The first example illustrates the most basic application of attorney-client privilege. Keep reading Example 2 to see how attorney-client privilege can be extinguished if you’re not careful.

Example 2: “Dean Chauncy meets with attorney Eaton to discuss the case. Later, over lunch with a colleague from another department who has no role in the case, Dean Chauncy recounts Eaton’s advice. Dean Chauncy’s earlier discussion with Eaton is no longer privileged. As a result, when Dean Chauncy is called to testify in the case, he can be compelled to describe his conversation with Eaton.”

Can you lose attorney-client privilege?

As you can see, one of the ways in which you could lose your attorney-client privilege is to disclose confidential information to a third party, but there are a few other ways that your attorney-client privilege can be destroyed.

• Non-legal advice: Typically attorney-client privilege does not apply to communications that discusses things unrelated to the law. To decide whether communication is privileged or not, a court focuses on the primary purpose of the communication to make its decision.
• Informed waiver: Attorney-client privilege can be extinguished by an agreement to waive it. This waiver is usually expressed in writing and cannot be undone. This is done most often by a government entity that waives attorney-client privilege in order to show its full transparency throughout a case.
• Communicating with a third party: If an uninvolved third party is present when disclosing confidential information, attorney-client privilege is waived. This also applies if privileged information is disclosed to a third party at a later time, as expressed above. There are a few exceptions, including language interpreters.
• Failure to object: This usually happens during a pre-trial discovery hearing, which is when both parties of a case can request the disclosure of information and documents. During this process, if one privileged information is shared and the party does not object right away, privilege can be lost forever in terms of that case.
• Crime-fraud exception: When a client and an attorney discuss how to commit a criminal or fraudulent act, attorney-client privilege does not apply.

Attorney-client is not easy to extinguish, but is often called into question during the course of a case. It’s important to find a California criminal defense attorney that you trust to remind you of your rights and protect your privileged information. If you’re involved in a criminal case and need an attorney to protect your information, contact the Law Offices of Grant Bettencourt to see if we can help.