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Attorney-Client Privilege in California

Posted by Terry A. Wapner | Mar 26, 2014 | 0 Comments

The attorney-client privilege is a pretty well-known concept throughout the United States. Most people understand that when they talk to an attorney, the things said during the discussion will be protected and privileged. However, there are definitely some important details related to how far the attorney-client privilege reaches and what is (and is not) considered “privileged information.”

If you are arrested and charged with a crime in Fresno, or other areas in California, it is important to understand how this privilege works. The American Bar Association (ABA) has published information related to the privilege to help make things clear for those who are involved in attorney-client relationships.

In general, the concept of attorney-client privilege is the idea that information shared with the attorney must be kept private and therefore allows the client to openly confide in his lawyer without worry. The terms, “lawyer confidentiality” and “attorney-client privilege” are similar and share some of the same characteristics, but the two are not identical.

  • Lawyer Confidentiality: Although it can vary state to state, must jurisdictions follow an ABA model rule relating to confidentiality. Model Rule 1.6 Comment [2] says: “A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation. … This contributes to the trust that is the hallmark of the client-lawyer relationship.”
  • Attorney-Client Privilege: First, keep in mind that this privilege is held by the client, not the attorney. Next, the rule followed in most states is the following: “The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.”

Generally, work-product includes an attorney's notes, observations, thoughts and research. It is important to remember that the privilege only works when the individual is speaking to the attorney for the purpose of obtaining legal representation. Also, if the information is available through another source, it is not considered to be protected.

When discussing the concept of lawyer confidentiality, remember that it applies to communications between the attorney and the client, but also to any information regarding representation, whether or not it comes from the client.

The attorney-client privilege also remains even after the death of the client. Further, information obtained after the initial representation must also be kept confidential by the attorney. However, if the information becomes known to the public, the information is no longer protected by attorney-client privilege.

There are a couple of significant exceptions to the attorney-client privilege: the attorney may disclose otherwise privileged information if the attorney needs to defend himself in an action against the client or in cases where a client is using the attorney to perpetrate a crime.

Each state has rules and policies in place that speak to attorney-client privilege as well as lawyer confidentiality. In conjunction, there are guidelines in place regarding disciplinary measures that must be taken when an attorney violates the rules. These will vary and can range from light sanctions to disbarment.

About the Author

Terry A. Wapner

Terry A. Wapner confines his practice to the defense of persons accused of driving under the influence of alcohol and/or drugs, and related crimes.

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