Trust: Attorney-client privilege

My lips are sealed. Can you trust your lawyer with secrets? If the lawyer squeals, the lawyer's in trouble, not you.

"The privilege is waived," the other lawyer insisted.

My client was answering questions under oath in a lawyer's office. My adversary asked her if she talked to me just before the hearing.

"Objection," said I, "don't answer. Privilege."

I was speaking of the attorney-client privilege. What is that? Subject to limited restrictions, everything you tell your lawyer is secret. Why? Can't the judge make your lawyer tell? No. The privilege is based upon the Sixth Amendment right to counsel. For that right includes the right to effective counsel. A lawyer can be effective only if he has all the facts. Will a client tell her lawyer all the facts if she fears the lawyer will tell what she said? Will clients tell their lawyers everything they know, if they fear their own lawyer can become a spy for the other side? Of course not. Thus, most everything the client tells the lawyer is a secret. This ensures the lawyer has a shot at getting all the facts. The lawyer is ethically bound to keep that secret. But the lawyer can't counsel the client how to commit a crime. 

So was I right to claim privilege if the other side just wanted to know whether the client and I talked at all, but didn't ask what we said? Opinions are mixed. I say no. Why? Because the unfair implication is that I told the client what to say.

"The privilege was waived," said the other lawyer. How? Well if the lawyer and client talk in front of somebody else, it's no longer a secret. My client was grieving the death of her mother. We were suing for medical malpractice leading to that death. When she met with me, she brought along her grandmother. If a young woman mourning the loss of her mother wants her grandma in the meeting with me, I'm not going to tell her no. Was the privilege waived? We'll let a judge decide, if it comes to that. But I say, if a girl can't have her grandma along to help out, then what's the world coming to? My strategy always accounts for practicalities. I did not allow the answer, and I doubt the other side will ever press the issue.

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