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By Jill Kruger, USI 

Under what is known as the attorney-client privilege, what a client shares with his or her attorney is forever privileged information that must be kept private, after the matter is concluded, and even if the client dies. But what is the extent of this privilege, can it be waived, and are there exceptions?

The test of whether attorney-client privilege applies to a communication is whether or not it was for the purpose of obtaining legal advice and was directed to the attorney who is being consulted for that purpose. When the communication is from attorney to client, it must be made for the purpose of giving legal advice or services, all in the course of a professional relationship.  If the communication involves both legal and non-legal matters, it will generally be considered privileged, as long as it is primarily of a legal nature. 

Losing the Privilege

However, the privilege can be lost in a number of ways, such as:

• Informed waiver. This is the most common way to lose the attorney-client privilege. While the client can decide to waive or forfeit the privilege, the lawyer cannot.
• Crime-fraud exception. When a court asks an attorney to break the privilege without the client’s consent, because of a suspicion of crime or fraud being committed, lawyers are not required to reveal information about past crimes.
• Failure to object. In the event that privileged information is produced during the pretrial discovery phase of litigation and a party doesn’t object in a timely manner, the privilege may be lost.

Attorney disclosure of this information to a third party could be considered an ethics violation subject to disciplinary action ranging from a slap on the wrist to disbarment, depending on jurisdiction. However, the attorney-client privilege is treated differently in a legal malpractice setting, and the client-defendant privilege is immediately waived if the client decides to sue his or her former attorney, putting the communications ‘at issue.’