Before we begin the discussion on the exceptions to the attorney-client privilege, I believe some background on the issue would be useful. The origin of the attorney-client privilege comes from English Common Law and dates back to the 1500’s. American colonies eventually adopted the attorney-client privilege and “codified the privilege in the first Constitution in 1776” (http://law.enotes.com). Although the elements vary from state to state there are several universal elements that make up the attorney-client privilege.
1. “Person asserting the privilege must be a client or someone attempting to establish a relationship as a client.
2. The person with whom the client communicates must be an attorney and acting in the capacity as an attorney at the time of the communication.
3. The communication must be between the attorney and client exclusively (or personnel of the attorney helping with the case).
4. Communication must be made for the purpose of securing a legal opinion, legal services, or assistance in some legal proceeding” (http://law.enotes.com).
The purpose of the attorney-client privilege is so that clients will tell the truth and disclose all information. The communication can be written or spoken, as well as an act that is performed in front of the attorney (e.g. client nodding head). The communication is privileged if it is not intended to be heard by a third party. It is very important for everyone to remember that the communication is privileged, “not the underlying facts” (http://law.enotes.com). Now we shall move on to some of the common exceptions to the attorney-client privilege.
The first exception is when the client discloses the information to another party other than the attorney and his or her staff. If the client does that then he or she just “waived” (lost) their privilege. The second exception is crime-fraud exception or in furtherance of crime or fraud. “If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud” is an exception (http://law.enotes.com).
A third exception is the joint client exception. If an attorney is hired by two people and those two people subsequently get into a lawsuit between themselves and one party wants to call the attorney as a witness he or she can. Both clients can use the attorney as a witness if they choose. The last exception we will discuss is when the client wants to sue the attorney. The attorney is allowed to disclose information in his or her defense. Of course, the client also has the right to waive the privilege if they choose, but the attorney has to have the client’s permission before disclosing any confidential communications.
There are obviously many different exceptions to the attorney-client privilege. The client is the only person who can give permission to disclose any confidential communications. The attorney can not disclose confidential communications even after the client is deceased not unless the client gives prior permission. Although, the client himself may accidentally lose the privilege if he gives out the information to a third party.
