Stephen Hasner | Personal Injury | March 17, 2022
Are you concerned about what is said in attorney-client conversations being used against you in court? Do you wonder what guarantee you have that an Atlanta personal injury lawyer will keep your information confidential?
If so, you’re not alone. Attorney-client privilege is a complex concept that often leaves people feeling uneasy. In this blog post, we’ll break down what attorney-client privilege means and how it can affect you.
What Does Attorney-Client Privilege Mean?
Privilege refers to the right to keep certain evidence from being disclosed to other parties. Privileged information is protected from discovery. Attorney-client privilege is the legal right to keep the information you tell your attorney confidential. It ensures that your secrets remain between you and your lawyer.
Clients are more willing to disclose information that remains private. They can be completely honest with their attorneys. Their attorneys cannot be forced to disclose the information to anyone.
Privilege also applies to the client. A court cannot compel the client to disclose what they discussed with their attorney.
Open and honest communication between an attorney and client promotes effective legal representation. Therefore, you should tell your personal injury lawyer everything about your case, even if you believe the information could hurt your personal injury claim.
The last place an attorney wants to discover damaging information is in court or during settlement negotiations. At that point, it may be too late for the attorney to do damage control. However, if your lawyer knows about a situation, they can develop a strategy for minimizing the potential damage to the case.
What Are the Requirements for Attorney-Client Privilege?
Privilege is specific. The parties must meet conditions for the privilege to apply.
The following elements are required for attorney-client privilege to apply:
- The disclosures and communication occurred between an attorney and client or potential client
- The purpose of the disclosures and communication was to obtain legal advice from the attorney
- The attorney was acting in their professional capacity when receiving the information
- The client or potential client reasonably expected that the information disclosed to the attorney would remain confidential
An attorney-client relationship must exist before information disclosed to the attorney becomes privileged. For example, a relationship exists when a person signs a retainer agreement to hire a lawyer. Paying a retainer fee is also evidence of an attorney-client relationship.
Does privilege attach when someone discusses sensitive and confidential information during a free consultation? The person has not yet hired the lawyer.
However, the following is true:
- The person came to the law office seeking legal advice
- The attorney gave legal advice
- The attorney was acting in a professional capacity
- The person expected the information to remain private
Some claim that privilege applies during a free consultation because all of the above requirements are met. However, others argue that until someone hires a lawyer, privilege does not apply. If you are concerned about discussing a topic during a free consultation with an attorney, ask the attorney if the information is confidential before you disclose private information.
Can a Client Waive Attorney-Client Privilege?
Yes, a client may voluntarily waive attorney-client privilege. There could be instances where the attorney needs to disclose information to further the case.
For example, assume that a car accident injury impaired your ability to have sexual relations with your spouse. That topic is private and sensitive. You may find it difficult to discuss. The last thing you want to do is tell a stranger or have the information included in a settlement agreement.
However, your attorney needs to disclose that information to the insurance company during settlement negotiations. The fact that you have a medically verifiable impairment could affect how much your personal injury case is worth. Furthermore, your spouse may be entitled to compensation for a loss of consortium claim.
Are There Exceptions to Attorney-Client Privilege?
There are instances where attorney-client privilege may not apply. For example, if you publicly discuss information where another person can overhear the discussion, or you send your attorney information through social media, privilege will not apply.
Examples of other exceptions to privilege include:
- An attorney represents two clients in the same legal matter. Neither party can claim attorney-client privilege if they decide to sue each other over the same matter.
- A person seeking legal advice to help them commit a crime or fraud cannot claim privilege.
- A prisoner asking for legal advice from their attorney about how to commit terrorist acts cannot claim privilege.
- After a client dies, the attorney-client privilege may be waived in litigation between the client’s heirs or people claiming to be heirs.
Some matters regarding the attorney-client relationship are not privileged. For example, the dates and times of meetings or the people attending the meetings is not privileged information. Only private communications with your attorney are protected by privilege.
What Types of Information Should Clients Tell Their Atlanta Personal Injury Attorneys?
Be as forthcoming with your attorney as possible. You may not believe that a fact or information is relevant. However, you are not a lawyer. You hired your lawyer because they understand the law.
Examples of information that could impact a personal injury case in Georgia include:
- Pre-existing health conditions
- Prior injuries or accidents
- Previous personal injury claims filed
- Filing or considering filing for bankruptcy or divorce
- Having a criminal record or being charged with a crime after the injury or accident
- New injuries sustained after the accident that resulted in the current personal injury claim
- Symptoms that you believe are minor or caused by another health problem
- If you are partially to blame for your injury, which may result in comparative fault allegations
It’s better to tell your attorney too much information than leave essential details out of the discussion.
When your attorney has all the relevant information about your case, they can assess the strengths and weaknesses of the claim. If you have a strong case, you may want to go to trial instead of accepting a low settlement offer. However, if there are problems with your case, accepting a settlement offer may be in your best interest.
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