What is Attorney-Client Privilege?
Attorney-client privilege is a right of a client of any attorney. A person becomes a client when he or she retains an attorney. To clarify this, both will typically sign an engagement letter. In it, the engagement letter specifies the creation of this relationship.
The privilege allows a client to refuse to disclose communications between the client and the attorney. Also, a client also can prevent his or her attorney from disclosing such information.
In practice though, clients seldom have to do so. Attorneys are well aware of this rule. Attorneys can be sanctioned for breaking it. Therefore, they are very careful about disclosing such information without a client’s consent.
Of note, the privilege belongs to the client. Along these lines, a client has a right to waive the privilege.
However, a client may accidentally waive the privilege. For example, a client waives the privilege if he or she gives the information to a third party. Or, a client may waive privilege if he or she gives the information in front of a third party.
Importantly, only the communications between attorney and client are protected. However, the information communicated is not. In other words, if the information is available elsewhere, simply reiterating it to an attorney does not make it privileged. Judges are well aware of this trick.
Why Does it Matter?
It’s critical that a client can speak freely to his or her attorney. More specifically, the United States Supreme Court has stated that the privilege encourages clients to make “full and frank” disclosures to their attorneys. In turn, the attorney is then better able to provide candid advice and effective representation (Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).
Attorney-Client Privilege in a Divorce
Full and frank disclosures are often needed in a divorce. Unfortunately, divorces may deal with many sensitive issues. These include:
- Children and Parenting Practices
- Allegations of Abuse, including Emotional, Physical, or Sexual
- Allegations of Drug and/or Alcohol Abuse
- Mental Health Issues
- Private Assets
- Other matters of personal privacy
It’s important to know that anyone can be open and honest with his or her attorney. It’s the attorney’s job to represent clients based on all information available. If a client withholds information, this can weaken representation.
For other divorce or family law questions, please consult the list to the left or the FAQ page. If you’re interested in retaining an attorney to help you, please feel free to contact my office for a consultation using the contact information on the left or the contact form on the Majeski Law home page. For Minnesota Court rules, go here.