The attorney-client privilege is a rule that guards both the client and his attorney from being forced to make known confidential communications between them. This meant to promote openness between the two parties and ensure that the attorney has all the relevant information so as to represent the client well. The secret information held between a client and his attorney remains confidential unless a court compels them to disclose it (Walkowiak, 63). The privilege to decide which information remains secret and which should be disclosed rests with the client. However, this may change and the client may pass the privilege to the attorney who decides which information is divulged to the court or any other party that may be interested in the case. In some instances, the use of this privilege is very complicated mostly if the client is not an individual but a company or organization. Over the years, many courts have ruled that incase of corporate clients, this privilege rests on board members, top officers and directors. On top of this, the privilege can also be exercised by an employee who has had discussions with a lawyer on behalf of the corporation (Schubert, 47).
In some instances, the attorney-client privilege may not apply and the parties may be compelled by a court to disclose all the communication between them. The first instance when the attorney-client privilege may not apply is when the client discloses the confidential information to another party apart from the attorney. This means that the privilege applies to the correspondence between the client and the legal representative but not between the client and the third party to whom the information has been disclosed. Another situation where this privilege my not apply is when the disclosure can lead to prevention of a crime like fraud or tort. Sometimes, the communication between the legal representative and client may be intended to perpetrate a crime. In such a case, the law does not protect the involved parties and they may be compelled to reveal their communication so that the intended crime may be prevented from happening (Walkowiak, 121).
Another instant when the attorney-client privilege may not apply is if it’s meant to promote the interests of the attorney compared to those of the client. Depending on the set policy, attorneys are allowed to disclose client confidential information when they are sincerely trying to seek payments for the services offered. This is based on the argument that if lawyers were not allowed to divulge such information, they would only offer their services to clients who pay in advance. Attorney may also contravene their duty ethics when they are facing legal proceedings brought against them by their clients. A customer who sues their lawyers surrenders their right to discretion (Schubert, 84). The attorney-client privilege does also not apply to leakage of information that is the public is already aware of. However, the attorney should remain loyal to the client at all times and should not disclose more information to the public than what is already out there. Lastly, the attorney-client privilege does not apply to the revelation of information meant for probation purposes. All confidential information held between an attorney and his client may be revealed if the client dies. For example, this is done when the attorney wants to reveal the will of the deceased (Walkowiak, 32). However, it should be noted that this is only done if its intent is to serve the desire of the client. Other types of privileges are the self incrimination privilege, public interest privilege, marital privilege, without prejudice privilege, clergy-penitent privilege and the medical professional privilege.
Frank A. Schubert. Introduction to Law and the Legal System. Cengage Learning, 2011. Print
Vincent S. Walkowiak. The attorney-client privilege in civil litigation: protecting and defending confidentiality. American Bar Association, 2008. Print