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Can My Lawyer Tell My Secrets?

One of the scariest things about confiding in an attorney is wondering whether that information can come back to haunt you later. Even if you are the victim in a personal injury lawsuit or suing to protect the estate of a loved one, it can be scary to put everything out there to a perfect stranger. Before a current or prospective client can trust their legal counsel, they must first be reassured that the private details they share with them will be kept confidential.  

How can clients gain the security needed that guarantees their sensitive information will not end up in the wrong hands? An attorney-client relationship affords many benefits. One such advantage is known as the attorney-client privilege. It is designed to protect the disclosure of confidential communications between attorneys and their clients to any third party, including government agencies and legal authorities.

What is attorney-client privilege?

Attorney-client privilege is the rule that all attorneys must follow that preserves the confidentiality of communications between them and their clients. Lawyers are forbidden from revealing oral or written communications from their clients that are intended to remain private. Anyone outside the client’s legal time is denied access to the information.

To fully understand how the attorney-client privilege works, you must first understand who holds it. Under New Mexico law, it is the client who can assert or waive confidentiality. Only the client has the power to do so.

How do you know when the attorney-client privilege applies? Here are three guidelines to help you know when your information should remain confidential.

  1. A current or prospective client shares information with an attorney for the purpose of gaining legal advice.
  2. A lawyer has agreed to act in a professional capacity while providing legal advice to someone.
  3. A client has the expectation that their communications will remain private at the time they seek legal counsel.

Even after the attorney-client relationship ends, all communications must remain confidential. There are only a few exceptions to this rule, which we discuss in more detail later.

Defining the client-attorney relationship

Before the attorney-client privilege applies, you must first ensure you have the kind of relationship covered under the rule. How do you know whether you have an attorney-client relationship? Once an attorney has agreed to represent you, that is enough to establish an association. Engagement letters, contracts, oral or written agreements on the scope of representation, and any payment or legal retainers issued to the attorney count as proof of an attorney-client relationship.

If an attorney agrees to appear on behalf of a client during any official court hearings, that action also constitutes an official relationship between the two parties. What about case evaluations and free consultations? While these can be a little harder to define under the rule, in most cases, confidentiality applies.   

Do I really need to disclose that?

The short answer to that question is yes. The biggest benefit of attorney-client privilege is it allows clients to share every detail relevant to their representation in a case. Your attorney cannot fight for your rights if he or she does not have the full picture. One of the worst things that can happen to you is to have potentially damaging information come to light during a court hearing. If your attorney is unaware of it, they may struggle with how to defend against it on the spot. Having all the facts of a case before negotiating a settlement or representing you in court helps your attorney construct a solid strategy for winning your case. While it may be embarrassing to share certain things with your attorney, doing so really is in your best interest. You can do so knowing that the attorney-client privilege protects you.

When does attorney-client privilege not apply?

As we eluded earlier, there are times when the attorney-client privilege does not apply to your circumstances. One of the most obvious times this rule can be ignored is if the client chooses to waive their right to confidentiality. As the holder of the privilege, they have the right to disclose sensitive communications with their attorney at any time they deem necessary.

Here are some other times when the rule may not apply:

  • The client uses legal advice to commit a crime or fraud. Clients who seek legal advice with the intention of using it in the furtherance of committing a crime or fraud are not covered by attorney-client privilege.
  • The client is deceased. Under certain circumstances, attorneys can divulge information if their clients die. Confidentiality only can be breached under court order and, even then, attorneys may attempt to block their release.
  • There is a common interest. If two clients share the same attorney for the same case, neither can assert privilege against the other in subsequent litigation.
  • There is a fiduciary duty. Shareholders of corporations have a duty to uphold the law. Under certain circumstances, they can waive attorney-client privilege between the corporation and its legal representatives.

Building a level of trust

Scott Atkinson has fought for New Mexicans for more than 30 years, representing them in personal injury cases and with estate planning. He builds a level of trust with his clients that starts with their initial case consultation and lasts until its conclusion. Scott and his staff understand the importance of attorney-client privilege and promise to keep all information confidential for every client they represent. To schedule your free consultation, call 505-944-1050 or contact our firm online.

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