Attorney-Client Privilege

One of the oldest recognized devices for confidential information, the attorney-client privilege can be dated back to Roman law and the time of Marcus Tullius Cicero. Privilege encourages clients to disclose to their attorneys all pertinent information in legal matters by protecting such disclosures from discovery at trial. That privilege allows an attorney to refuse testifying pertaining to communications from the client. This confidentiality ensures the client is protected and safe to discuss information with a lawyer, but there are some rare exceptions to the rule that should be known. 

To understand the exceptions, we must first comprehend the requirements for privilege. Under Florida Statute 90.502 lawyer-client privilege, a lawyer is any person authorized to practice law and the client is any person or entity who consults a lawyer with the purpose of obtaining legal services. A communication between lawyer and client is confidential if it is not intended to be disclosed to third persons other than:
  • Those to whom disclosure is in furtherance of the rendition of legal services to the client.
  • Those reasonably necessary for the transmission of the communication.
These stipulations are rather broad, but, for an example, if a client was injured in a car accident and is suffering from severe neck pain, the client's medical history would need to be disclosed to the court and to the defending party in order to determine if the injury was a result of the crash or if it was a pre-existing condition. There are numerous examples like this that will most likely need to be disclosed, but the attorney-client privilege protects legal communication and strategy discussed between the lawyer and the client. 

An important note for the privilege is that it can only be claimed by the client, not the attorney. What this means is that the attorney is normally unable to release or disclose any information covered by privilege unless the client allows it. The client is in full control in this situation. However, there are exceptions to the privilege and times when it may not apply. For example, privilege cannot be claimed when the communication may be used to further a crime, tort, or fraud. 

As discussed in the previous paragraph, privilege does not protect disclosure that is ostensibly used to support the lawyer's own interests. The client is in full control of the privilege and may use or revoke it at his or her own discretion. Privilege also does not protect information that is clearly not confidential, such as how many hours a client works per week or how much he or she makes at that job, etc. 

Privilege is also commonly revoked in the event of a client's death for the purpose of disclosing the client's last will and testament. Parts of the client's estate plan may require explanation or interpretation through proof, such as the attorney's file notes or other correspondence from the client. Courts have also been known to revoke privilege after a client's death if doing so serves the client's interests or intent. In the case of resolving a testamentary dispute among the heirs, for example. 

The attorney-client privilege is an ancient practice that encourages clients to disclose to their attorneys all pertinent information in legal matters by protecting such disclosures from discovery at trial. This confidential information between the lawyer and the client may remain private as long as a court does not force disclosure. This allows the client to feel safe in being as truthful and forthcoming as possible, which permits the client's attorney to be as efficient and comprehensive as possible in handling cases.