April 19, 2019
If you watch crime dramas on television, you may have heard something about “attorney-client privilege.” However, you might not really know what it means, or when it actually applies.
Attorney-client privilege should not be confused with confidentiality. All attorneys have an ethical duty to protect the confidentiality of their clients, while attorney-client privilege actually belongs to the client, and is protected by the rules of evidence. Although there can be overlap in the information that may be covered by both confidentiality and privilege, there are also characteristics that make each of these things unique.
For anyone who has been arrested and charged with a crime, understanding attorney-client privilege is critically important. If you have never hired a lawyer before, you might assume that everything you tell your lawyer will be protected by attorney-client privilege. This is not always true as there are certain exceptions that may apply. Furthermore, every state handles attorney-client privilege differently.
Open and honest communication with your attorney helps them provide you with the best possible defense, but be aware of the following information regarding attorney-client privilege under Florida law:
Attorney-Client Privilege According to Florida Statutes
For the purpose of attorney-client privilege, Florida law defines a lawyer as any person who is authorized, or who you believe is authorized, to practice law in any state or nation. A client can be an individual, but Florida law may also consider as clients public officers, corporations, associations, and other public and private entities who contact lawyers and enlist their services. Additionally:
- All communication between lawyers and clients that is not intended for a third party, except those who help the rendition of legal services and those who remain necessary for transmitting information, is confidential.
- Attorney-client privilege belongs to the client, who may refuse to disclose and prevent others from disclosing confidential communications that were made during the rendition of legal services.
- In addition to the client, parents or guardians of a minor client, a personal representative for a deceased client, and a successor or assigned representative for a public or private entity or organization can also claim lawyer-client privilege. The client’s attorney can also make the claim on behalf of the client.
- Florida law protects those who seek or receive child support enforcement services through the Department of Revenue. Any communication with the department’s attorney is confidential and privileged as if there is an attorney-client relationship.
Exceptions to Attorney-Client Privilege
Under Florida law, no attorney-client privilege exists under the following conditions:
- A client sought out or obtained legal services to enable or help anyone commit or plan to commit crime or fraud.
- Communication pertains to an issue between parties involving the same deceased client.
- Communication pertains to a breach of duty by the attorney to the client or by the client to the attorney.
- Communication pertains to the execution or validation of a document or an issue about the intention or competence of the client who executes the document if the lawyer is a witness.
- Communication pertains to a common interest between more than one client or the successors, and they retained or consulted the lawyer together.
Attorney-Client Privilege vs. Duty of Confidentiality
The most important thing to understand is attorney-client privilege and confidentiality are not interchangeable terms. Confidentiality is the attorney’s ethical duty, and attorney-client privilege is controlled by rules of evidence.
All state bars have a version of the Model Rules of Professional Conduct established by the American Bar Association (ABA). Lawyers in the United States must meet the standards and abide by the ethics and professionalism rules set by their licensing jurisdiction.
Under Florida’s Confidentiality Rule 1.6, lawyers cannot reveal any information about representing a client, except for the following reasons:
- To prevent death or bodily harm;
- To prevent a client from committing a crime or fraud;
- To prevent, mitigate, or rectify injury to another party’s property or financial interests;
- To secure legal advice about a lawyer’s compliance with ABA rules;
- To make a claim or defend oneself against any criminal or civil charge which arises from the attorney-client relationship or to respond to allegations about representing a specific client;
- To comply with another federal or state law or a court order;
- To deal with conflicts of interest that might occur from a lawyer’s change of employment or changes in a firm, but only if revealing the information does not compromise attorney-client privilege.
Confidentiality and privilege can overlap, but clients should understand the difference and know when each may or may not apply.
Waiving Your Privilege
Attorney-client privilege may be waived. You may intentionally choose to do so if confidential communication shared with your lawyer might help your case. However, beware that privilege can also be waived unintentionally, such as when a client discusses their case with friends, family, or other third parties, or they put information about themselves and their case online using social media platforms.
Attorney-client privilege protects the confidential communication between you and your lawyer. If you post something about your case on Facebook or Twitter, or even if you privately tell your friend about your case, your attorney-client privilege may be destroyed.
Trust in Our Experienced St. Petersburg Criminal Defense Attorneys
Regardless of the type of case you may be facing, getting charged with a crime is inherently stressful. Hiring an experienced criminal defense attorney will help you have the best possible chance for a dismissal or reduction in charges and/or penalties. Even knowing that, it can still be scary and intimidating to share everything about your case with a lawyer. Ask your lawyer to explain attorney-client privilege and their duty of confidentiality so that you can freely communicate with them with confidence. If you have questions, your lawyer can answer them. They will also help you understand how to protect your privilege.
If you or a loved one need a criminal defense attorney, contact Khonsari Law Group in St. Petersburg at (727) 269-5300 or online to schedule a free consultation and learn if we may be able to help you.