Last Updated on June 12, 2025
You have probably heard of attorney/client confidentiality, but you probably don’t know what that entails unless you’re a lawyer. While communications between a lawyer and a client are considered privileged, there are exceptions where the attorney may willingly disclose this information without any repercussions. If an attorney breaks confidentiality outside of these circumstances, they risk their entire legal career.
What is Attorney/Client Privilege?
Essentially, lawyer/client privilege means that an attorney cannot share any oral or written statements from his client, or that he made to his client, without that client’s consent. Just as a patient must trust a doctor or therapist to find the best course of action for their care, confidentiality is a critical part of the legal system because it allows clients to trust their legal representatives and plan a strategy based on the facts of the case. Without this privilege, people would be worried that if they shared information with their attorney, it could easily get back to the police (or the opposing party in civil cases) and then be used against them.
When Can a Lawyer Breach Confidentiality?
While most of what is said between a lawyer and his client is privileged, there are some limits:
Only Attorney/Client Communications are Protected
Statements made to an attorney are only protected if they were working for you in a legal capacity. If you are talking to your friend who is a lawyer or someone on a board of directors who happens to be an attorney, what you say will not be protected because that person was not acting as your legal representative at the time.
You Cannot Discuss Future Crimes
You also may not tell your lawyer about a future crime you intend to commit and expect that information to remain confidential. The courts have ruled that your defense attorney will only be forced to testify to this information if the crime was carried out, not if it was merely discussed as a plan. Courts typically permit clients to ask their attorneys general, hypothetical questions about potential crimes without testing the limits to attorney privilege though. If you need to confess your intent to commit a future crime beyond simply asking hypothetical questions, consider confessing to a priest instead (though always ensure the priest you choose to confess to is required to maintain confidentiality the way Catholic priests are).
Your Lawyer Cannot Break the Law
The crime-fraud exception occurs when a lawyer’s communication to a client is intended to obstruct justice or aid in the commission of a crime. You can’t use your attorney status to further crimes. For example, an attorney cannot advise clients to hide or destroy evidence and expect the communication to remain privileged. The Justice Department is currently seeking the testimony of ex-lawyers for President Trump because they believe those conversations were part of an effort to unlawfully overturn the election.
If you believe your lawyer is recommending you to do something illegal, speak with another attorney as soon as possible to protect yourself from this possibility.
You Must Speak in Private
While your attorney must keep your conversations confidential, this only applies in areas where you can reasonably expect privacy, just as spousal communications laws only protect in private discussions. If you meet your lawyer in public or talk with them on a cellphone while in public, anyone who overhears you could share that information with police or prosecutors. Only discuss sensitive information with your lawyer when you are in a place where you can reasonably expect privacy. Additionally, if you tell someone what you and your lawyer talked about, that person could be compelled to testify about what you told them.
Similarly, if you are in jail or prison when you speak to your lawyer, other inmates could come to guards with the information they overheard during the conversation, so make sure you have a private area to talk. You may want to avoid discussing the case on the phone, as corrections officers may also monitor your conversation. If you were warned that your calls may be monitored and you reveal sensitive information to your lawyer over the phone, the prosecution could use that information against you later on.
Does Confidentiality Apply to Third Parties?
Minors are not required to suspend their right to confidentiality to have a parent present in the room and spouses can also be present at confidential attorney meetings. Otherwise, family and friends present during meetings with your lawyer could be called to testify on what was discussed, unless they have a valid reason to be there. If you want a third-party present during meetings with your attorney, you may need to surrender your right to confidentiality.
In some cases, it is legally necessary for a third party to be present at such a meeting and a criminal defense lawyer could convince the judge that the other person needed to participate in the conversation and cannot be compelled to testify. For example, if that person was part of the defense team’s legal strategy, these communications would also be protected. Similary, if a client requires an interpreter, they would be covered by the same attorney/client privilege.
Interestingly, if someone eavesdrops on your conversation without your conset (when it is held in a private location), they will also be required to keep any overheard information confidential.
When Your Attorney Must Share Confidential Information
In some cases, your lawyer may be ethically required to disclose certain communications or risk disciplinary sanctions or even criminal charges. For example, if you told your attorney that someone else is going to give or has given a perjured testimony, if you reveal the location of a missing person whose life is in imminent danger, or if you threaten to harm someone related to the case, your attorney may have to reveal what you said to the court or the police, depending on the situation. Also, if you give your attorney a crucial piece of evidence, they may have to turn it over to the police or prosecution.
When You Must Break Confidentiality With Your Attorney
You will be legally required to waive the confidentiality of your communications with your attorney if you take disciplinary or legal action against them. A person is legally expected to provide all reasonable evidence to protect themselves against accusations without having to tiptoe around communications that could be at the crux of disciplinary or legal proceedings. Fortunately, few clients find themselves in a position where they feel it necessary to take action against a lawyer, especially when that attorney is as well respected as Peter M. Liss.
Frequently Asked Questions
What Happens if a Lawyer Breaks Confidentiality?
If an attorney breaches confidentiality, they will face disciplinary action by the American Bar Association, ranging from sanctions to disbarment.
Are Lawyer Consultations Confidential?
Yes, suppose a potential client goes into a consultation and discusses a case before choosing another legal representative to handle the issue. In that case, the first lawyer cannot reveal anything discussed during their meeting because they were acting as the client’s attorney at the time.
Should You Talk to an Attorney Before Committing a Crime?
You should wait to contact a lawyer if you plan to commit a crime. Telling your attorney about a crime you plan to commit in the future is one of the rare exceptions to lawyer/client confidentiality, meaning he will have to tell the court about your conversation if the crime is carried out. You can ask general, hypothetical questions, for example, “What is the monetary value that determines if something is petty theft or grand theft?” But a conversation will not be protected if you ask something like, “I want to steal from someone, but want to make sure I am not charged with grand theft, how much can I take without crossing that line?”
If you have any questions about attorney/client confidentiality, Peter M. Liss can answer them. Please call (760) 643-4050 to schedule a free initial consultation.
