Your Defense Lawyer’s Duty to Keep Things Confidential

The most basic principle underlying the lawyer-client relationship is that lawyer-client communications are privileged or confidential. This means that lawyers cannot reveal clients' oral or written statements (nor lawyers' own statements to clients) to anyone, including prosecutors, employers, friends, or family members, without their clients' consent. It doesn't matter whether defendants confess their guilt or insist on their innocence: Attorney-client communications are confidential. However, as with most legal issues, some exceptions exist.

This article reviews the basics of the attorney-client privilege and the ways in which a client might lose their privilege.

Attorney-Client Privilege and Your Defense Attorney

Both court-appointed lawyers (such as public defenders) and private defense attorneys are equally bound to maintain client confidences, even potential clients.

Generally speaking, the attorney-client privilege applies when:

• a potential or actual client communicated information to an attorney
• the communication sought legal advice, and
• the client (potential or actual) made the communication in confidence.

The attorney-client privilege belongs to the client. It prevents the lawyer from being forced to testify regarding the client's communication unless the client gives up the privilege. The lawyer also owes the client a duty of confidentiality to never reveal the client's secrets to anyone else without their permission.

The attorney-client privilege outlives the relationship and even the parties. It applies after the case is over and the attorney-client relationship ends. Even the client's death doesn't end the privilege. Importantly, though, the client must always act in a way that maintains the privacy and secrecy of the communication.

Losing Your Right to Confidentiality

If a client acts in a way that doesn't protect the secrecy of their communications, they give up the attorney-client privilege.

Speaking in a Public Place

Suppose you discuss your case with your attorney in a restaurant, loud enough for other diners to overhear the conversation. Can they testify to what you said? Yes. Lawyer-client communications are confidential only if they are made in a context where it would be reasonable to expect that they would remain confidential. (Katz v. U.S., 389 U.S. 347 (1967).) A defendant who talks to a lawyer in such a loud voice that others overhear what is said has no reasonable expectation of privacy and thus waives (gives up) the privilege. Similarly, people who talk about their cases on cell phones in public places risk losing confidentiality.

Jailhouse Conversations on the Phone

Jailhouse conversations between defendants and their attorneys are considered confidential, as long as the discussion takes place in a private area of the jail and the attorney and defendant do not speak so loudly that jailers or other inmates can overhear what is said.

But what about phone conversations, either in person (speaking on phones, separated by a glass partition) or using a payphone? Defendants must be very careful not to allow jailers or even other prisoners to overhear what they say on the telephone. These people sometimes eavesdrop, in person or on the telephone, and then claim that they were able to overhear incriminating information because the defendant spoke in a loud voice. (Inmates often try to curry favor with prosecutors through such tactics.) If a judge believes them, the privilege is lost and a jailer or other prisoner can testify to a defendant's remarks.

Sometimes, jailers warn a prisoner that phone calls are or may be monitored. That warning alone may mean that phone conversations between prisoners and their lawyers may not be privileged. If a jailer monitors a phone call and overhears a prisoner making a damaging admission to the prisoner's lawyer, the jailer can probably testify to the defendant's statement in court. (For more, see Can a jail record my telephone conversation with my lawyer?)

Inviting Others to Be Present

For perfectly understandable reasons, defendants sometimes want their parents, spouses, or friends to be present when they consult with their lawyers. Does that mean that the conversation won't be considered confidential?

Quite possibly. Defendants who bring strangers (people who are not part of the attorney-client relationship) into a meeting risk losing the right to claim that the meeting was confidential. This means that the D.A. might be able to ask the stranger or even the defendant about what was said during the meeting. However, the lawyer can maintain the privilege by convincing a judge that it was necessary to include the stranger in the conversation. For example, if the third party can shed light on the case or otherwise help the lawyer develop a strategy, that person's presence would not destroy the confidentiality of the conversation.

Sharing the Conversation With Others Later

Blabbermouth defendants waive (give up) the confidentiality of lawyer-client communications when they disclose those statements to someone else (other than a spouse, because a separate privilege exists for spousal communications; most states also recognize a priest-penitent privilege). Defendants have no reasonable expectation of privacy in conversations they reveal to others.

Talk to a Lawyer

If you want to know what is and isn't confidential given the law in your jurisdiction, make sure to consult a criminal defense lawyer. An experienced lawyer can advise you on the relevant law and guide you through the criminal legal system.