We have all heard of attorney-client privilege, but we may not know precisely what the limits of that privilege are. If you are conversing with an attorney, you want to make sure that what you are saying will be kept confidential, so it is essential that you know what circumstances you can and cannot be completely candid.
What exactly is attorney-client privilege, and how does work when it comes to criminal law in Philadelphia? Continue reading, and we will walk you through everything you need to know.
What Is An Attorney-Client Privilege?
Attorney-client privilege is a rule that is meant to maintain the confidentiality of communication between an individual and their attorney. A client needs to make sure that he can trust his lawyer, and he should feel encouraged to share information openly. An attorney is going to have a difficult time giving their client the best possible representation if the client is worried about incriminating themselves.
The Client's Privilege
So what exactly is the client's privilege? Generally, this rule can be applied in three scenarios. A person receives this privilege when they go to a lawyer for advice and are either an actual or potential client.
It can also apply when the lawyer is acting in a professional capacity (as opposed to a casual friend). It also applies if the client intends for the communication to be private and confidential.
When this privilege is in force, a lawyer cannot reveal written or oral communications with other people when the client's expectation is privacy. The client must first consent before their lawyer can share any private information with other parties.
In this situation, it is the client who is privileged. They get to decide what is and is not shared with others; the lawyer cannot decide this.
Generally, without the client's permission, the lawyer can never share their private communications. Even if that person stops being a client or they are deceased.
Criminal Law in Philadelphia: The Other Way Around
So now we understand what client to attorney communication privilege is. But what about the other way around? What about the attorney to client communications?
Is a client supposed to keep private what their attorney shares with them? In Philadelphia and the rest of Pennsylvania, the answer is actually yes.
There was confusion over this for decades in the state. In 2011, with the case of Gillard v. AIG Insurance Company, the Pennsylvania Supreme Court declared that attorneys are also privileged to confidentiality. The reason for this was to encourage more open communication between clients and their attorneys.
Exceptions to Attorney-Client Privilege
Now, before you start giving confidential information to the next attorney you come across, you must understand the limitations to this essential privilege.
There are two primary situations where the exception applies. First, if the client intends to commit, or they are currently committing a crime or fraud, then the privilege does not stand.
Also, if the client tells their attorney that they are trying to cover up a crime or intending to further their offense, the privilege will not apply.
This privilege does not just apply to criminal law, but also with civil tort. For example, a person who goes to an attorney seeking advice on how to commit unlawful activity does not get the attorney-client privilege.
Past, Present, and Future
Timeline is critical when talking to an attorney. When you communicate with your lawyer about a past crime, you are pretty much always privileged. However, communicating about a current or future crime is generally not protected.
This situation does not mean the privilege is void if you are discussing hypothetical's or the potential consequences of a possible action in the future. Generally, your intent to commit a crime needs to be current in order for your privilege to be inapplicable. Unfortunately, determining the present purpose and possible intent in the future is not entirely clear.
It may be up to the court if the client was intending to commit a crime or was inquiring about consequences if they should happen to take a specific action.
It is worth noting that attorneys can be forced to divulge communications if the prosecution subpoenas them. This action applies to the crime-fraud exception. Lawyers can also be ethically required to disclose in certain situations or risk criminal charges themselves.
Let's look at several situations below:
If the client threatens to harm another person, such as a judge, attorney, or witness, then an attorney might be responsible for reporting under mandated reporting laws.
If a lawyer knows that a witness has given or is about to give a perjured testimony, the lawyer must inform the court. It is worth noting that this rule may not apply if that perjuring witness is a client of the attorney.
If the client gives their attorney a crucial piece of evidence, then the attorney may be ethically required to turn it over to the court.
Also, if the client tells their lawyer about the location of a person who is in imminent danger or missing, the attorney may be required to disclose that information.
The Importance of Knowing About Attorney-Client Exceptions
Attorney-client privilege is one of the crowning achievements of the American justice system. But it is not without its exceptions. Even when it comes to criminal law in Philadelphia.
By knowing when the privilege does and does not apply, you can better protect your rights and make sure that you do not incriminate yourself.
Are you looking for a criminal defense lawyer who is going to fight to protect your rights? Contact us today to learn more!