When people meet with a lawyer, one of the first questions they often ask is, “Will what I tell you stay private?” The answer depends on an important legal rule known as the attorney-client privilege. This privilege protects communications between a client and their lawyer, but like most things in law, there are exceptions.
This article explains what attorney-client privilege means, when it applies, what lawyers can and cannot disclose to the police, and the limited circumstances where the privilege does not protect a client’s secrets.
What Is Attorney-Client Privilege?
The attorney-client privilege is a cornerstone of the American legal system. It protects communications between a client and their attorney made in confidence for the purpose of seeking legal advice.
At its core, this privilege ensures that clients can speak freely and honestly without fear that their own words will later be used against them in a criminal case or other legal proceeding. By shielding confidential information, the law encourages clients to fully cooperate with their legal team, enabling defense lawyers to provide effective representation.
When the Privilege Applies
The privilege applies whenever:
- There is an attorney-client relationship (the person sought legal advice in a professional capacity).
- The communications were made privately, with an expectation of confidentiality.
- The conversation is about seeking or providing legal advice.
For example, if a client tells their lawyer about events leading up to an arrest, that conversation is protected. But if the same person casually talks about the case with a friend at a bar, those statements are not privileged.
What the Privilege Protects
Attorney-client privilege protects communications, not every single piece of information a lawyer learns. This includes:
- Verbal conversations between client and lawyer
- Written documents shared for legal advice
- Strategy meetings regarding defense in a criminal case
- Emails, texts, or files exchanged in connection with representation
This protection does not automatically extend to the underlying facts. For instance, if a client hands over physical evidence, the evidence itself is not shielded just because it was given to an attorney.
What Cannot Be Shared with the Police
Under normal circumstances, lawyers cannot disclose their client’s secrets to law enforcement. That means they cannot testify against their own clients, cannot repeat what the client said in private, and cannot voluntarily provide confidential information to the police without the client’s consent.
In other words, privilege applies in most states to prevent the disclosure of communications between the lawyer and client, even when law enforcement asks for cooperation.
The Crime-Fraud Exception
There are important limits. The privilege does not protect communications made for the purpose of committing a crime or fraud. This is known as the crime-fraud exception.
For example, if a person consults an attorney while actively planning a robbery or asks for advice about hiding money from investigators, those conversations are not privileged. A judge may require the attorney to testify or disclose those details in court.
The idea is simple: the law does not protect conversations aimed at committing future crimes. Privilege protects communications about past acts, not ongoing or future criminal conduct.
Client-Attorney Privilege vs. Spousal Privilege
It’s also useful to distinguish attorney-client privilege from spousal privilege. Spousal privilege protects communications between married partners in many criminal proceedings. Just like with lawyers, the law assumes that certain private relationships should be free from outside intrusion.
However, attorney-client privilege is often considered stronger because it directly relates to the justice system’s ability to function fairly.
Examples of When Privilege Applies (and Doesn’t)
- Example 1 (Protected): A defendant admits to a lawyer that they were at the scene of a burglary. Because this was told in confidence during representation, the privilege applies. The lawyer cannot reveal that fact to the police.
- Example 2 (Not Protected): A client asks a lawyer to deliver stolen goods to another person. Since the act involves committing a new crime, the privilege does not apply.
- Example 3 (Protected): A client shares sensitive details about past drug use to prepare a defense. These statements remain protected under the privilege.
Duty of Confidentiality vs. Privilege
While related, confidentiality and attorney-client privilege are not identical. Privilege is an evidentiary rule used in court, preventing lawyers from being forced to testify about private communications. Confidentiality is an ethical duty that requires lawyers to avoid revealing information related to their client’s case in any setting, even outside of court.
A lawyer’s duty of confidentiality is broader. For example, a lawyer generally should not casually discuss a client’s case details with others, even if those communications wouldn’t fall under formal privilege rules.
Waiving the Privilege
A client can waive attorney-client privilege, either intentionally or accidentally. Examples include:
- Sharing privileged communications with a friend or third party.
- Giving the lawyer permission to speak to investigators.
- Disclosing private information in a public setting.
Once privilege is waived, those communications may become admissible in court. This is why lawyers encourage clients to keep their discussions private and avoid careless disclosure.
The Role of the Lawyer
A lawyer is bound to act in a professional capacity when representing clients. The privilege ensures that clients can be open without fear, but it also means the lawyer must carefully navigate the limits of disclosure.
If police request documents, files, or testimony, the attorney may assert privilege on behalf of the client. However, if a judge rules that an exception applies, the attorney must comply with the court’s request.
Why Privilege Matters in Criminal Defense
In every criminal case, the ability to have private, protected conversations with an attorney is essential. Without it, clients might withhold crucial facts, weakening their defense.
Attorney-client privilege protects communications so lawyers can build strong defenses, review the evidence, and challenge criminal charges effectively. It is one of the most important safeguards in the U.S. justice system.
Putting It All Together
The attorney-client privilege:
- Protects communications between client and attorney.
- Encourages full disclosure for effective defense.
- Applies when communications are private and for legal advice.
- Can be waived by the client’s consent or careless sharing.
- Does not cover communications made to further a crime or fraud.
Final Thoughts
Attorney-client privilege is not absolute, but in most states, it provides broad protection. Clients should assume that their conversation with a lawyer will stay private, but also understand the scope of the privilege and its exceptions.
If you are facing criminal charges, working with a lawyer you trust is essential. At Wolf Law, we take our duty of confidentiality seriously and fight to protect your rights. If you have questions about what you can safely share with your attorney, or if you are under investigation, don’t wait.
Call Wolf Law today at 720-479-8574 for a free consultation with our experienced defense attorneys.
