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There Are Times When Lips Are Sealed

December 12, 1985|JEFFREY S. KLEIN

Talking to your lawyer can be like talking to your priest. Your lawyer cannot absolve you of your sins, but the law respects the sanctity of the attorney-client communication as much as the sanctity of the confessional.

A criminal defendant accused of murder can admit his guilt to his lawyer, and neither the lawyer nor the defendant can be forced by a judge to reveal what was said.

That doesn't mean anything you say to your lawyer is privileged from disclosure. Like any other legal rule, the attorney-client privilege has certain elements that must be satisfied before it will work properly. So before you tell your lawyer all your secrets, you should understand what will and what won't be protected.

Made in Confidence

For the attorney-client privilege to protect a communication, it must be made in confidence to an attorney by a client for the purpose of procuring legal advice. And even if these elements are met, you can later lose the privilege if you inadvertently waive it or your lawyer does not properly assert it on your behalf.

Why should an armed robber be able to tell his lawyer about the facts of his crime, knowing that whatever he says cannot be used against him in the courtroom? Or why should a businessman who is violating labor regulations not have to worry when he admits the violations in confidence to his attorney?

The purpose of the privilege is not to protect criminals or allow businessmen to conduct their affairs in secret. The privilege is meant to encourage people to seek legal advice and to be honest when they sit down with their lawyers.

The privilege, as one court noted, is necessary to "encourage clients to make the fullest disclosure to their attorneys, to enable (them) to properly advise the clients."

"The social good derived from the proper performance of . . . lawyers acting for their clients," another court explained, "is believed to outweigh the harm that may come from the suppression of evidence in specific cases."

Suppression of evidence, even when it is allowed by a privilege, is frowned upon generally in American jurisprudence. Courts expect witnesses to tell the truth about what they know.

"Exceptions to the demand for every man's evidence are not lightly created or expansively construed," the U.S. Supreme Court once said, "for they are in derogation of the search for truth."

As a result, the attorney-client privilege, and other privileges not to disclose information (such as those for a husband and wife or a doctor and patient) are strictly construed by the courts. Courts will carefully review a request not to disclose such information and may be inclined to rule against the privilege unless all the legal technicalities are met.

The communication must be confidential. So if you approach your attorney at a cocktail party, within earshot of other guests, it is unlikely that a court would say the privilege was available to protect you from testifying about what was said. However, if your lawyer has a legal assistant in the office when you reveal your secrets, the conversation will probably be considered confidential.

Don't Tell a Friend

Don't tell your friends and business associates what you've told your lawyer. If you want to keep the communication confidential, treat it confidentially.

The communication (it can be written--a letter--or oral) must be made to a lawyer who is acting as a legal adviser, not one who is giving, say, business or investment advice. If you are talking to a friend or relative who happens to be a lawyer, your conversation will not be privileged unless you are seeking advice in his professional capacity and not engaged in general conversation.

In one New York case, a lawyer claimed that he did not have to tell the grand jury where his daughter was because his daughter's communication with him was privileged. But the court decided that he learned of her whereabouts in his parental role and not as her legal adviser, so the privilege did not apply.

The privilege applies to a client and also to prospective clients. When a criminal defendant interviews a lawyer to see whether to retain him, the attorney cannot be forced to say what the prospective client said, even if he admitted the crime itself.

Crimes in the past are protected by the privilege. But there is an important exception: Future crimes and improprieties are not protected. It is well settled that communications from a client to an attorney about a crime or fraud to be committed are not privileged.

If your lawyer does not assert the privilege in a timely and proper manner, it may be waived. You can lose your right to assert the privilege in other ways. Let's say you write your lawyer a long, detailed letter about legal strategy. You even mark it confidential on the envelope. In the letter, you reveal facts that will hurt your case.

In the Wrong Hands

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