Most people know that anything they say to their attorney, mental health professional, priest or rabbi is confidential. They might also believe, because it’s confidential, that it can’t be presented as evidence against them in court. But this isn’t always the case, unless you assert the information is privileged.
The fact you’ve confided certain information to your attorney or other professional doesn’t automatically mean it can't be admissible in court. The prosecutor or judge can still demand that your lawyer reveal the information during the discovery process or testify about it in court, although your lawyer has an ethical responsibility to you not to divulge it. This dilemma can put him in the cross hairs.
Privilege is the right you assert to help your lawyer out of a tight spot when the court or prosecutor demands confidential information from him. Only you can assert this right; your attorney can’t claim privilege for himself unless you expressly authorize him to do so on your behalf. When you do this, he doesn’t have to turn privileged information over in discovery and he doesn’t have to reveal it in court. This is what’s commonly referred to as the “attorney-client privilege.”
Privilege doesn’t exist until you claim it. You must assert your right or the court can consider your silence as an intention to waive it. The judge can then allow the testimony or rule that certain information must be turned over. You can also waive your right to a privilege if you share the confidential information with a third party, someone other than your attorney. It’s no longer confidential when someone else knows about it, so the protection of privilege is lost. If you mention the confidential information in court proceedings or relay it to the prosecutor, it’s no longer a privileged communication and your attorney can be compelled to testify or release confidential documents in his custody.
Not all information or communications are privileged. Under certain circumstances, the judge can rule the right to a privileged communication doesn’t exist. If you confess to your lawyer of having already committed a crime, this is confidential and privileged information. But if you tell an attorney or mental health professional that you’re going to leave his office and go out onto the street and shoot someone, for example, this is a crime you’re contemplating so it’s not protected. The individual you’ve confided in has a legal responsibility to communicate your intention and prevent a crime from happening. The court will probably rule against your claim of privilege if the information you seek to keep confidential flies in the face of public policy.
- National Paralegal College: Introduction to Confidentiality
- American Bar Association, Center for Professional Responsibility: Confidentiality, Privilege – A Basic Value in Two Different Applications (PDF)
- Clinical Lawyer: Confidentiality vs. Privilege – What is the Difference?
- Lynchburg’s Business Magazine: Confidentiality and Privilege -- What Does it Mean?
- Photo Credit Pictac/iStock/Getty Images
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