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Protecting Client Communications

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Protecting Client Communications
The Attorney-Client Privilege

The Attorney-Client relationship is one based on trust. Every client must feel that he can trust his or her attorney with his or her liberty (in a criminal case), or with his or her property or assets (in a civil case). In order to promote this relationship of trust, the law recognizes the need to protect the communications between an attorney and his or her client. After all, how can I, or any attorney, provide the client with proper representation if I do not know all the facts of the case. If a client feels that he cannot trust that his or her attorney will keep what is discussed between them in the course of representation confidential, the client may not be totally honest with his or her attorney, and that could jeopardize the attorney’s ability to fulfill his or duty of providing zealous representation.

In New York, section 4503 of the Civil Practice Law and Rules establishes a privilege to protect attorney client communications. Simply put, the attorney-client privilege states that an attorney, or any member of his office, may not disclose any confidential communication had between the attorney, or any member of his office, and a client, without the consent of the client.

We can see that there are three basic elements to the attorney-client privilege:

  1. There must be a confidential communication involved;
  2. The privilege covers confidential communications between the attorney, or any member of his office, and the client
  3. Only the client may waive the privilege

The first thing we must consider is whether or not we are dealing with a confidential communication. Not every exchange between an attorney and his or her client is a confidential communication.

A confidential communication refers to any communication between the attorney, or any member of his or her office, and the client during the course of the professional relationship. That is, any communication between the parties dealing with the attorney’s representation of the client. The professional relationship exists when the client seeks out the attorney for the purpose of having the attorney represent the client.

Let’s take the example of a client who has been accused of the possession of narcotics. He goes to an attorney because he wishes to hire the attorney to represent him in the criminal case. While discussing the case, the client tells the attorney, “Look, I knew there was cocaine in the package they gave me, but I’s been out of work for 6 months, and this guy said he’d give me $500.00 to take the package across town. So I agreed.”

The statement of the client to his attorney is an admission to knowing possession of the cocaine, however, the attorney-client privilege prevents the attorney from divulging the contents of that statement. The conversation where the statement was made occurred because the client went to the attorney to hire the attorney to represent the client in the criminal case against the client. Since the client sought out the attorney in the attorney’s professional capacity, the professional relationship exists. The statement made by the client is made in order to give the attorney a knowledge of the facts of the case, especially is knowing possession is an element of the crime. so that the attorney can properly represent the client. It is, therefore, easy to see how this statement would be protected by the privilege.

In identifying a confidential communication, we must bear in mind that, even when the professional relationship is established, not everything said during the course of that relationship is privileged. In our example of the possession of narcotics client, were the client to then tell his attorney that on the way to deliver the package he stopped at a hot dog stand and bought a hot dog and, “Let me tell you, the guy used a spicy mustard that was really good,” this part of the statement would not be privileged, as this statement has nothing to do with the reason the client went to the attorney. The attorney does not need to know his client’s taste for food condiments in order to determine how best to represent his client.

Consulting an attorney, by itself, even if consulting an attorney about a legal issue, will not create the attorney-client relationship. The important factor is consultation with a view toward representation.

In the case of People v. Osorio, 75 NY2d. 80 (1989), an attorney was speaking with his client about a case where the client was a criminal defendant. Because of a language barrier between the client and the attorney, the client’s co-defendant offered to act as an interpreter for them. After assisting the attorney speak with his client, the co-defendant, who was represented by another attorney who was not present at the time, discussed his own part of the case with the attorney he had just assisted. The New York State Court of Appeals held that the statements of the co-defendant to the attorney he was assisting were not privileged. In so ruling, the Court held that the co-defendant was already represented by another lawyer and there was no evidence to show that his discussion with the attorney he assisted was for the purpose of having that attorney represent him, so the professional relationship did not exist as between the co-defendant and the attorney.

The second element of the attorney-client privilege is that the privilege covers communications between the client and the attorney, or any member of his office. In a typical privilege scenario, the presence of anyone outside the protected relationship, that is, a third party, will void the privilege. This is logical since the purpose of the privilege is to keep communications based on the relationship confidential. If the confidentiality is our goal, disclosing the contents of the communications to others, not necessary to that relationship lends itself to non-confidentiality. However, an exception is made when we are dealing with members of the attorney’s office.

Who is a member of the attorney’s office? Anyone who is engaged by the attorney to assist him or her in their representation of the client. This may include a paralegal, a secretary, a stenographer or an investigator or interpreter to name a few. A member of the attorney’s office need not be an employee of the attorney, but may include an independent contractor engaged by the attorney to assist him in providing representation.

Perhaps the most common example would be an interpreter who assists the attorney in speaking with his client who speaks a different language. It can hardly be said that the interpreter is an unnecessary third party if he or she is there to help the attorney communicate with his or her client. If the attorney does not have an interpreter, or an interpreter for the language that the client speaks, on staff, then one must be engaged from outside the attorney’s office.

Finally, only the client may waive the privilege. While an attorney is generally considered an agent of the client, such is not the case when the issue is disclosure of a confidential communication. The privilege belongs to the client who must affirmatively waive in order for disclosure to be made.

Consider the case of People v. Cassas, 84 NY2d. 718 (1995). The defendant went to his attorney and confessed to shooting his, the defendant’s, wife and also told the attorney where he hid the gun. As part of the attorney’s representation of the defendant, the attorney surrendered the defendant to the police and told the police that the defendant shot his wife and also told them where they could find the gun. At the trial of the defendant, these statements were admitted into evidence over the objection of the defense attorney.

On appeal, the New York State Court of Appeals held that the admission of the statements into evidence violated the attorney-client privilege as the attorney was not authorized to disclose those confidential communications. Even though the defendant agreed to have his attorney surrender him to the police, the defendant did not affirmatively waive the privilege and permit disclosure.

While the privilege prohibits disclosure, the law does recognize certain exceptions where the privilege does not apply:

  1. Communication made without the anticipation of representation; See People v. Osorio, infra.
  2. Information as to the identity of one’s client or the identity of who is paying for the legal services;
  3. Communications disclosed by the client prior to representation;
  4. Communications made in the presence of third parties, not assisting in the representation of the client;
  5. Where the attorney and client are co-conspirators, or where the communication relates to aiding a crime, even if the attorney is innocent of wrongdoing;
  6. In disputes over fees.

The attorney-client privilege seeks to promote total, open and honest communication between an attorney and his or her client. It is essential that the client be satisfied that whatever he tells his attorney within the confines of the professional relationship will not be repeated, but will only be used by the attorney to provide zealous representation to the best of his or her ability.

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