What is Attorney-Client Privilege?


What is Attorney-Client Privilege?

Attorney-client privilege is a concept that generally says that clients have a right to expect that everything they tell their lawyer will be kept in strictest confidence. Clients have a right to expect that the lawyer will keep attorney-client communications private. The idea behind lawyer-client confidentiality is that clients should feel comfortable talking to their lawyer – even if that means that the client reveals things that may not place the client in the best possible light. 

Lawyers, according to the attorney-client privilege doctrine, need to know everything about their clients in order to give the client the best possible advice – even the negatives. Lawyers in divorce cases need to be able to anticipate the arguments the attorneys for the other spouse may assert.

For example, if a spouse is having an affair, the attorney-client privilege means that the spouse should feel comfortable telling the New Jersey family lawyer about the affair. The lawyer needs to know about the affair because the affair may affect equitable distribution, alimony, and custody. The client desires lawyer-client confidentiality because he/she may want to keep the affair private from other family members, friends, and coworkers. So, the attorney-client privilege helps the lawyer advise the client and helps the client keep his private matters confidential.

Divorce lawyers work for you. Some of the communications we need to know about include the following.

  • How you raise your children
  • Any abuse allegations
  • What private assets you have
  • Whether there are any mental health issues
  • How much you’re earning

Normally, in divorce, cases, if you know about something negative your spouse knows that negative too. If we know for example, that you were in a substance abuse program then your spouse will likely know that too. If we have the correct information, we can respond appropriately – such as by showing that you obtained counseling and have been sober for a long time.

When does attorney-client privilege apply?

The attorney-client privilege applies when:

  • The lawyer is acting professionally – instead of just giving advice as a friend.
  • There is a communication between the client (or a potential client) and the attorney.
  • There is an anticipation by the client that the communication should remain private.

Generally, a divorce lawyer cannot reveal written or oral communications.

The attorney-client privilege does have related limitations and applications. For example, a lawyer can communicate with her legal secretary about something the client said. The secretary is bound by the same attorney-client privilege and cannot reveal the communication to anyone outside the lawyer’s office.

The attorney must keep the communication private after the work relationship ends – and even after the client dies. Generally, attorney-client privilege applies unless the client grants permission to reveal the communication or some exception applies.

Attorney-client privilege also protects the lawyer and client in the courtroom. A lawyer generally cannot be ordered to reveal a communication by a client such as a spouse or a partner – through testimony, in a deposition, or another court proceeding. 

Lawyers generally cannot reveal the communication to other lawyers that are not involved in the same legal practice.

What are the exceptions and applications to the attorney-client privilege?

Communications by the client in public may not be bound by attorney-client privilege on the basis that there was not an expectation of privacy.

If you reveal something about your marriage or divorce goals to your lawyer at an initial conference, the lawyer is bound by attorney-client privilege even if the client and lawyer do not agree that the lawyer should represent the client.

Generally, there is a dividing line between disclosures of past conduct and future conduct – if the conduct involves illegal activities. If a client states he failed to include income on a tax return, then the lawyer generally cannot reveal that information based on attorney-client confidentiality. However, if the client says I’m not going to account for cash payments on my “next” tax return, the lawyer likely does have a duty to reveal that communication because lawyer-client privilege would not apply.

In addition to criminal acts, lawyers are generally required to reveal a privileged communication between lawyer and client if that communication indicates a client may cause serious bodily harm or death to another person. The attorney-client privilege may also not apply if a client intends to cause fraud. 

At DeTorres & DeGeorge Family Law, our divorce lawyers protect our clients’ interests. We review the strengths and weaknesses of your case. Often, the things that you think affect your divorce in a negative way aren’t as bad as you think. We honor attorney-client privilege. To discuss your divorce rights, call us at 908-691-2104 or use our contact form to make an appointment. We have offices in Clinton and Florham Park.

Rosanne S. DeTorres
Ms. DeTorres is the managing partner and co-founder of DeTorres & DeGeorge Family Law. She is also only one of 150 attorneys in the State of NJ that is certified by the NJ Supreme Court as a Matrimonial Law Attorney. Ms. DeTorres graduated...
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