Recent media coverage has focused on the “Attorney-Client Privilege” and “Confidential Communications” primarily in the context of the President and other political figures as criminal investigations proceed. Keep in mind that the same rules and protections that affect high profile persons and law firms affect everyone who is in contact with a lawyer.
There are actually two issues to discuss:
– When does an attorney-client relation form?
– What information, if any, that a client provides to an attorney is protected by the attorney-client privilege?
As to the formation of the attorney-client privilege I, like many other attorneys, spend much time communicating with friends, family, neighbors and others discussing legal issues and fielding legal questions. It is flattering that in a society with a multitude of lawyers, I still am barraged with queries on an ongoing basis. That we speak, e-mail or text about a legal issue and I provide some information, does not, of and by itself, create an attorney-client relationship. The Pennsylvania Rules of Professional Conduct apply to attorneys as to their duties, rights and conduct. All states have similar regulations.
In Pennsylvania, the attorney-client relationship is NOT automatically formed just because we discuss, for example, your issues with your neighbor and his trees. However, a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. For that prospective client to become a client, there must be an agreement with the attorney and the new client on the scope of representation; that is, what I am to do for my new client. The new client’s informed consent must be obtained, meaning that the new client should clearly understand that they want my office to represent them in a matter, so that I can proceed. As soon as practicable, the attorney-client relationship must be confirmed in writing. You the client have a right to know that my office is now representing you in a certain matter or matters, and what the fees shall be. A signed fee agreement is needed.
My goal is to be certain that we both know what I’m to do and also, what is expected of you, the client. You are the source of information and, at times, my efforts are stalled because of less that complete communications with the client.
And NOW, that attorney client privilege and confidentiality issue that is in the news.
In Pennsylvania, an attorney’s obligation to keep client information confidential even extends to prospective clients so if we discuss a legal issue, regardless of where, and you provide information to me, that information cannot be disclosed, even if my office does not ultimately represent you. Any information that is “significantly harmful” to you cannot be used or revealed.
An attorney’s duty to a client is to not reveal confidential information unless expressly authorized by the client, except in furtherance of the representation of the client. The confidentiality is not without exceptions though. Information from a client can be revealed if the lawyer believes that it is reasonably necessary to:
– Prevent reasonably certain death or substantial bodily harm
– Prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interests or property of another
– Prevent, mitigate or rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services are being or had been used
– Establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.
(There are a number of other exceptions, but they are generally not applicable in most situations.)
So, subject to the above exceptions, your confidential information is safe with me. Your information about actions taken, at times regrettable, thoughts and ideas that you express regarding my representation of you and the like, are not disclosable and will not be disclosed. Your secrets are safe with me.
About That $1:
In Breaking Bad, attorney Saul Goodman tells his kidnappers to pay him $1 so that all future information is subject to confidentiality. In real life, no money or other consideration need to be exchanged for the attorney client relationship to be formed. If we agree that I am to provide legal service for you, I am your attorney and you are my client. Save the dollar for later.
– Allan Opsitnick
Disclaimer: The information in this blog post is provided for general informational purposes only. No information contained in this post should be construed as legal advice from Allan Opsitnick, Opsitnick & Associates or the author of a blog post. This blog post is not intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.