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Attorney-Client Privilege

What is attorney-client privilege?

Attorney-client privilege or confidentiality is the unwritten agreement indicating the attorney is prohibited from revealing anything the client has told him or her in confidence unless the client has specifically granted permission to do so. The reason this privilege is vital is because it allows the client to be frank and open with the lawyer, equipping him with the facts necessary to defend the client. In some cases, even the prosecution will be unaware of some of these details, which can help leads to a more level playing field for the defendant. If the attorney breaches this trust or privilege, he/she could be sanctioned or even disbarred. One of the exceptions in which the attorney is allowed to breach this privilege is if he or she becomes aware the client may commit a crime. For public interest and prevention of any wrongdoing, such communication need not be privileged or confidential.

Who owns the privilege in the attorney-client privilege? How does the presence of a third party influence this privilege? Can the privilege be removed from the contract?

The privilege belongs to or is owned by the client. The client can waive this privilege if they choose to. In most cases, the presence of a third party would imply statements made in their presence would not be considered under the purview of the attorney-client privilege. Since the client owns the privilege, he/she has the right to “waive” the privilege if they wish to.

Is an attorney limited to talking only to his client? Does attorney client privilege apply to minors?

The attorney has a right to speak only to his or her client and the people the client has explicitly given him or her permission to speak to. If there is no explicit permission to speak to a third party, the lawyer may discuss the client’s case details with his support staff and other team members in the law firm. He also has an option to discuss the case with colleagues who are not part of the same firm but without revealing the client name. The attorney-client privilege comes into force when any person, minor or adult, is represented by an attorney. This is irrespective of the age of the client or who is paying for the services.

In Maryland, is the attorney client privilege waived if a client sues his former attorney for legal malpractice? Can information be sought from the attorney about the same case?

For the purpose of a malpractice action, suing the attorney normally waives the attorney client privilege. This waiver may not extend to other subsequent matters. Additionally, the attorney-client privilege is for the client’s protection so he/she may choose to waive it. As per Rule 1.5 of the Maryland Rules of Professional Conduct, an attorney is allowed waive the attorney client privilege if he/she is required to respond to a civil claim. Any statements mentioned in the previous proceedings can be used against the attorney. Once the client has waived the privilege by suing the lawyer, the previous court documents become public record, which can be used for any further litigation.

Why is the attorney-client privilege protected?

The attorney client privilege is protected because it is essential the client trusts his/her lawyer completely. If the client believes the attorney would use the information against him/her, there will be no open communication. This would be detrimental to all concerned. The attorney has a responsibility to represent his clients as capably as possible. In order to do so the attorney should know all the important information and facts about the case. This will help in providing accurate legal advice and avoid any unintentional advice that might break the law. The lawyer is an integral part in upholding justice. Before the concept of privilege arose, there were concerns that lawyers would face conflicting interests between the court and client. With attorney-client privilege in the picture, it reinforces the idea that the attorney serves the client.

Dealing with legal matters is a difficult task for most of us. Sharing all the details of your personal matter whether it is a civil or a criminal case can be daunting. The attorney-client privilege helps protect your interests. It also provides an opportunity for the attorney to represent you competently because he/she is aware of all the facts concerning the case and can choose the best course of action. It is important to know your rights and options in this matter and Experts can be helpful to guide you with the right information.
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