Almost everyone knows that what is said between a lawyer and his or her client is considered privileged information, but what you might not know is that there are limits to this confidentiality and exactly what those limits are. Here’s what you should know about attorney/client confidentiality courtesy of top Vista defense lawyer Peter M. Liss.
Essentially, the lawyer/client privilege means that a lawyer cannot share any oral or written statements from his client, or that he made to his client, without that client’s consent. Even if a potential client goes into discuss a case with an attorney in Vista and then chooses another legal representative for his or her case, that first lawyer cannot reveal anything discussed during their consultation because he or she was acting as an attorney at the time.
Remember that what you say to an attorney is only protected if that lawyer was 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 also may not tell your lawyer about a future crime you intend to commit and expect that information to remain confidential in the future. The courts have ruled that your Vista 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 generally do permit clients to have asked general, hypothetical questions about potential crimes without requiring the attorney to break confidentiality 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).
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 Vista defense 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, he or she may have to turn it over to the police or prosecution.
You will be legally required to waive the confidentiality of your communications with your attorney if you take disciplinary or legal action against him or her. This is because a person must be able to provide all reasonable evidence to protect himself or herself against accusations without having to tiptoe around communications that could be at the very crux of the 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.
While your Vista criminal attorney must keep your conversations confidential, others do not have to abide by such rules, so if you meet your lawyer in public or talk to him or her on a cellphone while in public, anyone who overhears you could share that information with police or prosecutors. This is why you should only discuss things you want to keep confidential with your lawyer in a place where you can reasonably expect privacy. Additionally, if you tell someone about what you and your lawyer talked, 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 information they overheard during the conversation, so it is important to make sure you have a private area to talk. You may also want to avoid discussing the case on the phone at all as your conversation may not only be overheard by those near you, but also because many jails and prisons monitor inmate phone calls. If you were warned that your calls may be monitored and you reveal something to your lawyer over the phone, the prosecution could use that information against you later on.
If you want a third-party present during meetings with your attorney, your right to confidentiality could be surrendered. This does not apply when the defendant is a minor and they have a parent present, but otherwise non-spouse family members present during meetings with your lawyer could be called to testify on what was discussed. In some cases it is legally necessary for a third party to be present at such a meeting and a Vista 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.
Finally, an attorney’s communication to a client is not protected if it is intended to obstruct justice or aid in the commission of a crime. An attorney cannot advise a client to hide or destroy evidence and expect the communication to remain privileged. If you believe your lawyer is advising you to do something illegal, you may want to speak with another attorney as soon as possible in order to protect yourself.
If you have any questions about lawyer/client confidentiality, Peter M. Liss can answer them. Please call (760) 643-4050 to schedule a free initial consultation.
Creative Commons Image by Hilary Dotson