Perhaps you are thinking about hiring a personal injury lawyer to file a lawsuit for you. You researched several different personal injury lawyers online, have read their bios, and maybe even sent one or two of them an email.
As you hit the “send” button, you might be wondering whether the information you put in your email is protected by the attorney-client privilege.
The privilege is a pivotal and far-reaching one. So it is not surprising that it is hotly debated in many personal injury litigations.
The question arises then, when does the privilege apply? When is a personal injury attorney your attorney so that you may claim the attorney-client privilege?
We are going to take a look at this very important question.
What is the Attorney-client Privilege and Why Do We Have it?
The attorney-client privilege is a foundational legal concept. It is one of the oldest evidentiary privileges in the law and goes to the very heart of an attorney’s relationship with his client.
Dating back to the reign of Queen Elizabeth in sixteenth-century England, the privilege protects communications between a client and an attorney from being publicly disclosed.
However, as we will discuss further below, not every communication between an attorney and his client is protected from disclosure. The privilege has prerequisites, and only those communications that meet those requirements will qualify for the privilege.
That said, in general, the privilege aims to keep confidential communications made by a client seeking legal advice, as well as the legal advice given, from being exposed to an opposing party during litigation.
Why allow what is said between a client and his attorney to remain confidential during litigation?
To promote open and honest communications between a client and his attorney.
It is believed that if the client has full confidence that anything he tells his attorney will remain confidential, it will encourage the client to be completely honest with his attorney and, in turn, the client’s full disclosure of all the facts— both good and bad — will allow the attorney to give the client his best legal advice.
In this way, it is believed that an attorney can give a client his best advice.
The privilege was created and refined over the years by court decisional law. As such, it is not a fixed legal rule, but is one that changes and yields to competing social policy considerations.
Nevertheless, there are guiding principles that define when the privilege exists and when it is waived or lost, which we will discuss next.
Prerequisites for the Privilege to Apply
Like any other legal concept, there are certain requirements that must be met before the privilege can be invoked.
Before the privilege can apply, there must be:
- a communication
- made in confidence
- between an attorney acting in his professional capacity and his client
- for the purpose of seeking legal advice
Each one of these elements must exist before the attorney-client privilege can be invoked.
If one of these elements does exist, then the attorney-client privilege cannot be asserted.
Note that even when all elements are present, the privilege only prevents the substance of the communication from being revealed. It does not prevent every fact surrounding the communication (for example, the date) from being revealed.
Further, not all communications are protected by the privilege. To come within the privilege, the communication must be made in confidence. Thus, if there are third parties present when the client is communicating to the attorney, the privilege will be waived.
In addition, the privilege does not apply to all communications. Florida, in particular, recognizes 5 situations when the privilege will not apply. They are:
- when the attorney’s services are solicited to commit a crime or fraud
- if the client dies and his heirs file litigation against the probate estate
- in disputes between jointly-represented clients about the representation
- if law enforcement officials are monitoring communications between attorneys and inmates because probable cause exists that the attorney-client privilege is being used to conceal terrorism
- if there is an issue concerning the client’s competence to which the attorney is attesting as a witness in a document or concerning the execution or attestation of the document itself.
These exceptions are specific and limited, whereas the privilege itself is broad and continues even after representation has ended. Nevertheless, it is important to keep the parameters of the privilege in mind.
The attorney-client privilege is only present when certain conditions are met, and it does not protect all communications between an attorney and his client, only those that are made in confidence for the purpose of seeking legal advice.
So, when is a Personal Injury Attorney Your Attorney for Purposes of the Attorney-client Privilege?
The existence of an attorney-client relationship is key to the attorney-client privilege. Without this official relationship, there is no privilege.
But establishing exactly when that relationship begins is not always easy to do.
On one end of the spectrum is when you have hired an attorney to represent you and have signed an attorney-client contract. Clearly, at that point, the relationship would exist, and the privilege would apply.
On the other end of the spectrum is talking to an attorney about your case when you have yet to hire that attorney to represent you. For example, if you discuss your case with an attorney you meet at a cocktail party, given the social setting and presence of other people, plus the fact that you have not hired that attorney to represent you, there would be no reasonable expectation of confidentiality and no attorney-client relationship. Thus, the communication would not be privileged.
More difficult, however, are situations involving potential clients – for example, conversations made during a free consultation with a personal injury attorney.
Clearly, there is not an official attorney-client relationship during a free consultation because you have not yet hired the attorney. On the other hand, you would be seeking legal advice, and there would be an expectation of confidentiality. In addition, the Model Rules of Professional Conduct indicate that potential clients may invoke the attorney-client privilege.
Therefore, while it may be debatable, it is likely that a free consultation with a personal injury attorney regarding the facts of your case would be protected by the attorney-client privilege.
Navigating the ins and outs of the legal system is never easy. That’s why you should always enlist the assistance of an experienced Florida personal injury lawyer.
Helping Personal Injury Clients in Florida.
John Fagan and his legal team are dedicated to helping those who have been injured due to the negligence of another or are disabled. Contact us here or call our firm at 777-JOHN. We serve clients throughout Florida. Our main office is in Orange Park, but we have consulting offices in Palatka, Middleburg, Keystone, Starke, Gainesville, and Ocala.
