The attorney-client privilege in California is the topic of this blog post.
This blog post will discuss the reasons why you should always be truthful with your attorney..
Most people are aware of the term “attorney-client” privilege and realize that it makes communications with your attorney private. However many people that do not work in the legal profession do not fully understand both the full scope and the unusual power of this particular rule of United States law.
Extent of attorney-client privilege in California.
The attorney-client privilege applies to both civil and criminal matters and in fact it applies to any communication between an attorney and a client, whether in litigation or not. Any discussions concerning a contract, a will, a real estate deal or a family problem with your attorney is equally privileged. The attorney cannot reveal what was said or be made to testify about what was said without your express prior consent.
Purpose of attorney-client privilege in California.
The privilege exists so that individuals can freely communicate to his or her legal attorney without worrying that the information may be revealed. The attorney-client privilege is in fact the most powerful of the privileges enshrined in American law and has fewer exceptions than the doctor-patient, husband-wife, or even clergy-church member privilege.
Its primary purpose is to facilitate a relationship of trust and confidence between the attorney and the client so as to allow the attorney to adequately advise and represent the client. The core belief is that absent full and open communication with one’s attorney, one cannot obtain the full protection that an attorney is supposed to provide to the client in the United States.
The attorney-client privilege is integral to our legal system and is quite possibly one of the most important protections that are granted to individuals in the United States. The attorney client privilege essentially defines the role assumed by the private attorney which is the protection of the client against all adversaries, including the government of the United States.
The attorney client privilege grants your attorney the right to refuse to disclose information that the government or other legal adversary may attempt to use against you. In fact the breadth and scope of the attorney client privilege states that your attorney MUST refuse to answer questions or reveal information given to them no matter who wants it. The attorney-client privilege prevents your attorney and their agents from revealing any information given to them by a client.
Exceptions to attorney-client privilege in California.
There is only one exception. The exception applies if you inform your attorney that you intend to commit a crime which may endanger someone else. In that case the attorney is required to report the facts and details of that particular conversation.
However, this is significant. It also means that even if you have committed a crime in the past and tell your attorney that, they are legally required to keep that information strictly confidential unless you specifically instruct him or her to communicate it.
However the attorney-client privilege should not be confused with the ability to commit perjury which is the act of testifying falsely under oath. Ethical rules forbid any attorney from knowingly utilizing perjury to prove his or her case. If your attorney sees you committing perjury on the stand, he or she may be required to withdraw from the case or at the very least not to allow the perjury to influence the result of the case.
Your attorney can attempt to plan your case around avoiding having to voluntarily disclose any particular harmful facts. However the attorney cannot intentionally misrepresent the truth, nor assist you in doing so.
The attorney-client privilege results in attorneys routinely receiving information that is extremely confidential even though it may be of vital importance to other persons or the government and they MUST refrain from revealing that information to anyone, including the government and the Courts will stop anyone from seeking to subpoena the attorney or his or her records in to obtain that information assuming you claim your “attorney-client” privilege. In fact, the State Bar of California is responsible for maintaining a list of attorneys qualified to serve as “Special Master” to accompany peace officers in conducting searches for documentary evidence under the control of attorneys, physicians, psychotherapists and clergy members under the Penal Code so that confidential information on unrelated matters is not freely disseminated to law enforcement.
The attorney-client privilege applies even if you have not paid any money to the attorney or officially hired them. If you reveal any information to an attorney that you are meeting with the intention to possibly hire that attorney you have created an “attorney-client relationship” for purposes of confidentiality and any information given during the interview is privileged EVEN if you do not hire that particular attorney.
Note that the attorney-client privilege only applies when someone is either your attorney or has met with you to discuss your hiring them to take on your case.
Any communications that you make to your attorney that are done in a public place and are overheard by someone who is not your attorney means that person can be made to testify about what you said. For example in a hallway, if you say something to your attorney that someone else overhears that is not considered a private conversation.
This means that any communications between you and your attorney should be made in a location in which only your attorney and the attorney’s agents and you can hear or read the information given so that confidentiality is not inadvertently waived.
The attorney-client privilege belongs to YOU, not to the attorney. Thus you are tasked with the responsibility of ultimately asserting or waiving the privilege.
The attorney-client privilege lasts forever.
If any attorney breaches their legal duty and reveals any confidential information, not only will the information not be entered into evidence in Court in any way, the attorney will almost surely face severe disciplinary action from the California State Bar and you may have the right to sue them for malpractice if their ethical breach causes you to suffer damages. An attorney can be disbarred for violating the attorney-client privilege.
You should always be truthful when speaking with your attorney as they need to know EVERY unpleasant fact that may come up in the litigation. If you keep any secrets from your attorney that will place your case at greater risk of experiencing negative consequences. Those negative consequences could include a fact that you did not disclose to your attorney that comes up either in a deposition or at the trial and catches your attorney off-guard.
Your attorney cannot fight for you if they have doubts about whether you are being truthful with them. In fact many attorneys will take the time to investigate if they have any suspicions that you are holding something back. They will do that so the only parties that will be surprised will be the opposing party and their counsel. Withholding secrets from your attorney will cripple their ability to the best possible job for you. If you do not trust your attorney to tell them the whole truth you should shop around until you find one that you do trust.
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Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.
CONTACT INFORMATION FOR NATHAN MUBASHER:
Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660