"Attorney-client privilege" is a term we often hear in the news and legal dramas, but many people have misconceptions about this fundamental and foundational principle of the adversarial legal system. This is what you should know about attorney-client privilege and when it applies in PA criminal law.
What Is Attorney-Client Privilege, Exactly?
Attorney-client privilege is basically the obligation of your legal representative to keep certain information about you — and provided by you — confidential. It is codified under the Rules of Professional Conduct in Pennsylvania but also exists through Western legal systems. Contravention of attorney-client privilege (also known as "solicitor-client privilege" in Commonwealth jurisdictions) is treated seriously by both the courts and law societies/bar associations. Lawyers have gotten suspended and disbarred for breaching this confidentiality.
Why Does Attorney-Client Privilege Exist?
In the adversarial system of law, both sides have the right to legal representation and have the opportunity to present evidence and arguments to support their positions. In order to develop the most effective defense case, the lawyer needs their client to tell them everything related to the charges. If they were able to share that information broadly, especially with the opposition, it could be extremely detrimental to their case. How could an accused trust their advocate if the advocate could be strong-armed or otherwise persuaded to hand over sensitive information? If the client can't share all relevant information with the lawyer, the lawyer may be blindsided during trial or make the wrong strategic choice — which will only hurt you.
For example, let's say that someone is charged with robbery. They are guilty and have told their lawyer this. The prosecution case is based on extremely weak witness identification evidence. In our criminal legal system, the prosecution must prove the elements of a criminal case beyond a reasonable doubt, which is an extremely high burden of proof. Otherwise, you risk innocent people being punished for things they didn't do. The defense is not obligated to put the accused on the stand — only to challenge the prosecution's case. If the defense attorney is allowed to tell the other side that their client actually committed the robbery, the case would proceed very differently.
What you must remember is that any accused is entitled to a vigorous defense and that there are ethical rules to govern the lawyer's behavior. The lawyer is not allowed to let their clients lie on the stand. This is supposed to prevent a situation in which a lawyer lets that client testify that they have an alibi or didn't do the crime.
The Parameters of Attorney-Client Privilege
Contrary to popular belief, not every kind of information is caught under the umbrella of attorney-client privilege.
Attorney-client privilege only attaches if there is actually an attorney-client relationship. This means that you have retained a lawyer to act on your behalf on a legal matter. Merely sharing information with a lawyer doesn't fall under attorney-client privilege. Furthermore, attorney-client privilege only attaches to communications made while the lawyer is working for the client. Once you terminate the relationship, what you tell this lawyer — even though they once acted on your behalf — is not protected by attorney-client privilege.
Ownership of the Attorney-Client Privilege
As the client, only you can waive attorney-client privilege. Unless the lawyer has your permission, they must keep your information confidential. You may waive part or all of the privilege — for example, if you wanted your lawyer to share certain information with the prosecution for the purpose of plea or other negotiations. Be mindful that it is possible for you to accidentally waive privilege. If you start telling a third party about what you have told your lawyer in confidence, that information may lose the protection of attorney-client privilege.
When an Attorney Can Reveal a Client's Information
Most of what you tell your lawyer will be covered by attorney-client privilege, but there are some instances in which attorney-client privilege does not attach:
- If your lawyer knows you are going to engage or are engaging in conduct that is fraudulent or criminal with respect to the criminal proceeding — in which case the lawyer is supposed to take appropriate "remedial measures", which may include disclosure of the information;
- If disclosing the information would reasonably prevent someone's death or bodily harm to an individual (or individuals);
- If the information is otherwise available — for example, you can't successfully claim attorney-client privilege over documents or information already in circulation;
- If disclosure is to prevent you from committing a crime that is likely to bring substantial financial injury to another person or their property; or
- If disclosure of the information is ordered by the court or under law.
Other Types of Privilege Under Pennsylvania Law
Attorney-client privilege is not the only privilege that comes into play if you have been charged with a criminal offense. If you are married, for example, your communications with your spouse may be protected by spousal privilege. The Fifth Amendment is also a type of privilege. It protects you against self-incrimination so that the information you share can't be used against you in court by the prosecution. Without this privilege, there would be times when people refuse to tell the truth or hold back from providing certain information because of the legal consequences.
Why You Should Hire an Attorney in Criminal Cases
Criminal law can be a highly technical subject in a hard-to-navigate adversarial system. The prosecution will always be looking to obtain as much information from you as possible, especially if it implicates you further in the crimes with which they have charged you. Attorney-client and other privileges are important mechanisms that aid not only defendants but the effectiveness and efficiency of the legal system at large.
A criminal defense lawyer can explain what communications between you are protected by attorney-client privilege, as well as how you could inadvertently waive the privilege. Whether it's negotiating with the prosecution or representing you at trial, having an attorney looking after your interests ensures that you have the best chances of success in your case.