criminal defense attorney and client

What Is Covered by Attorney-Client Privilege?

By David Hammond

Some people may have a vague sense of attorney-client privilege. To most, it may appear as some sort of expansive, invisible shield that keeps anything that goes on between them and their criminal defense attorney hidden. While the attorney-client privilege does offer significant protection surrounding communications between a client or a potential client and attorney, it is critical to understand the nature of this protection as well as its limits.

What Is Covered by Attorney-Client Privilege?

Generally speaking, communications between an attorney and a client, or a potential client, are privileged. This means that the communications must remain confidential. The privilege is held by the client and so only the client has the authority to waive the privilege. Attorney-client privilege was established to encourage a trusting relationship between attorney and client and because it is widely recognized that it is important for a client to be able to freely discuss issues and concerns with his or her attorney.

Let us discuss more specifically what is covered by the attorney-client privilege. All private communications where a client or potential client seeks advice from a lawyer on a legal issue are protected from disclosure unless it fits into an exception to the privilege. The fact that the communication must be private is important to note. Communications that are made in the presence of others will not be considered privileged. If a client talks to his or her attorney knowing that other people are listening, it will not be considered private and, therefore will not be covered by attorney-client privilege. The same is true for electronic communications. If a client sends his or her attorney an email and CC’s someone else on the email, it will not be covered by the privilege.

It is also important to be aware that, while communications themselves are protected, facts, in general, are not protected. For instance, while you may not be forced as a witness to answer a question about what you told your lawyer about what happened at a certain time and place, you can be forced to answer a question about what happened at a certain time and place (assuming you do not have a separate privilege against self-incrimination under the Fifth Amendment to the Constitution). The communication is privileged, not the facts. Additionally, physical objects are not covered by attorney-client privilege. If you think stashing an instrumentality of a crime with your attorney will protect you, think again. Turning items over to your attorney does not mean they will be safeguarded by attorney-client privilege.  

Criminal Defense Attorneys

Attorney-client privilege is a cornerstone of the criminal justice system in the U.S. The legal system has recognized that the ability of a client to freely communicate with his or her attorney outweighs the desire of a court to have unrestricted access to all of the information gatherable. At CDH Law, we hold the attorney-client privilege to be a sacred thing, laying the solid relationship with form with our clients as we relentlessly defend them against any criminal charge they may face. Contact us today.

About the Author
David is a former military prosecutor and defense lawyer with over a decade of experience fighting for service members and their families. He served nine years and two combat tours as an active duty US Army officer, then joined the Reserves and settled down in Syracuse to be near family. Now representing people across Central New York charged with serious felonies, misdemeanors, DWIs, and traffic offenses, he puts the same level of commitment into his civilian law practice. If you have any questions regarding this article, you can contact David here.