Speaking with your attorney can be a lot like the “cone of silence” from the TV Show Get Smart—whatever you tell your attorney within the “cone of silence” is protected and no one else can hear it.
However, if appropriate steps are not taken, that privilege can be lost and the information you gave your attorney could then be discoverable by the opposing side.
The attorney-client privilege is a wonderful thing. It allows the client to be honest and candid with their attorney, and allows the client to discuss the potential pitfalls of their case with their attorney without worrying that the opposing side will get a hold of the information and use it against them. This complete honesty with your attorney is a necessity, so your attorney can better prepare for the arguments that the other side will make and the evidence that they will use.
The key to protecting the attorney-client privilege is limiting communication. Once the communication includes someone other than your attorney (or those working for your attorney), the conversation is no longer protected. Just like the “cone of silence,” anything said within the cone is protected; but, if you tell someone outside of the cone about what was said, the privilege may be lost.
Though not an exhaustive list, here are three common ways that privilege could potentially be lost:
1) Non-Confidential Environment
Privilege can be lost is by talking with your attorney about confidential things in a non-confidential environment. For example, if you talk to your attorney about your case while at a cocktail party, that communication might not be privileged, because others could overhear it. This may be true even if you don’t think anyone else is paying attention or listening.
2) Copying People on Emails
Privilege can be lost when you “CC” or even “BCC” someone else who does not work for your attorney on an email you send to your attorney. Once the information has been sent to someone who is not included within the attorney-client privilege, that conversation is vulnerable to discovery by the opposing side.
3) Telling Someone Else Before or After
Privilege can be lost by telling someone else about the confidential conversation either before or after speaking with your attorney. Just because you tell the information to your attorney does not mean it is protected forever. If you confide in your best friend, for example, and then later tell your attorney about it, privilege may not protect that information because someone else knows. The same holds true for if you confide in your best friend after talking with your attorney. Even though we know that none of our best friends would ever reveal our secrets, the simple fact that someone outside the attorney-client relationship knows the information prevents it from being protected by privilege.
The attorney-client privilege allows the client to have confidential conversations with their attorney without fear of the opposing side getting a hold of it. But, that “cone of silence” can be broken.
Speak confidentially with one of our trial attorneys at Goosmann Law Firm, PLC, today about how you can keep your secrets confidential. Feel free to stop in to one of our three Sioux City, Sioux Falls, or Omaha law firms to speak with an attorney regarding your attorney-client privilege questions.