Privacy and confidentiality have almost become a thing of the past in a world of increasing technological advances, smartphones, and social media. But in the legal world especially, confidentiality remains extremely important. Under Georgia law, certain information between a client and an attorney must be held confidential and may not be used as evidence. This type of information is protected under the legal umbrella of Attorney-Client Privilege.
Whitehurst, Blackburn & Warren attorney Drew Tuggle provides details about the purpose of attorney-client privilege as well as some common misconceptions about the rule.
Common Misconceptions Surrounding Attorney-Client Privilege
Misconception #1: Only certain types of communication are covered under attorney-client privilege.
Actually, many different types of communication are privileged. Written, oral, and electronic communication given for the purpose of obtaining legal advice are all covered. Documentary communications like emails, letters, or even text messages must be kept confidential so long as the following requirements are met: (1) the communication is between the attorney and client and (2) the communication was made for the purposes of obtaining legal advice.
Misconception #2: The mere presence of an attorney will cause communication to be privileged.
Not necessarily true. Lawyers always have the duty of confidentiality, but certain communications are still discoverable if they fall outside the scope of the attorney-client privilege. Any information that isn’t given to the attorney for the purposes of obtaining legal advice is discoverable. Moreover, the attorney-client privilege doesn't protect any facts or information that are readily available or observable by the general public.
Tuggle explains, “Let’s say I am asked by opposing council my observations of the client’s mental state during our time together. I must answer with my true observations, because someone’s mental state is readily observable to anyone in contact with the client. As a result, this observation wouldn’t be protected by the attorney client privilege.”
Misconception #3: Privilege is only active after you hire your attorney.
In fact, the Attorney-Client Privilege applies to active and prospective clients. It even carries on after a client's death.
“For example,” Tuggle says, “if a prospective client has a consultation with WBW regarding a divorce, and then he or she took the case to a different firm, the information given to WBW at the consultation would still be deemed confidential and would not be discoverable under the laws of attorney-client privilege.”
Misconception #4: Only your attorney protects your information.
The lawyer, of course, is responsible for keeping your information confidential. Also included in the privilege are the communications to counsel’s representatives who are not attorneys — such as paralegals and administrative assistants.
“They also protect your information if they are privy to your case,” Tuggle says.
Additionally, it is important to note that there are some exceptions to attorney-client privilege – such as the criminal activity exception: “If a client intends to continue committing fraud or a crime, the privilege ‘takes flight’ meaning the privilege is waived,” Tuggle explains.
Tips Regarding Confidentiality and Your Case
1. Don’t discuss your case with any third parties, even friends and relatives. Friends and relatives are not covered under the attorney-client privilege; thus, opposing counsel can discover any communication you’ve had regarding your case from the third party.
“Technically, information you tell anyone, including your spouse, could be discovered by opposing counsel,” says Tuggle. “Spousal privilege prevents a spouse from being forced to testify against his or her husband or wife, but a spouse can choose to testify if they wish to do so.”
2. When communicating with your legal team via paper or electronically, include "Attorney-Client Information: Privileged and Confidential" on the envelope and in the email subject line. Tuggle adds, “While this is not an absolute defense that the information contained therein is covered by the attorney client privilege, it’s still a helpful tool that illustrates that the client was engaging in this communication to seek legal advice concerning information they wished to keep confidential.”
3. Treat all communication in a confidential way. Don't simply leave legal documents in public view.
At the end of the day, attorney-client privilege prevents a lawyer from being compelled to testify against his or her client. It also prevents opposing counsel from using the discovery process to acquire any communications between the client and the attorney. The purpose underlying this privilege is to ensure that clients receive accurate and competent legal advice by encouraging full disclosure to their lawyer without fear that the information will be revealed to others.
"Remember,” says Tuggle, “the attorney-client privilege is not our privilege - it's yours.”