The question of attorney-client privilege – what is, and what is not, protected by it – isn’t something that usually leads the evening news. Recently, however, it has been the talk of newsrooms and workplace watercoolers alike. Most of us (at least, most non-lawyers) have had a perception that the attorney-client privilege is one-size-fits-all; everything you say to your attorney is a secret. But, while that is almost always true, there are exceptions.
Each state has different rules governing when attorney-client privilege does or does not apply, but in Florida the test used by Florida Courts says attorney-client privilege exists where:
(1) Legal advice of any kind is sought
(2) From a professional legal advisor in his capacity as such,
(3) [Where] the communications relating to that purpose,
(4) [Are] made in confidence
(5) By the client,
(6) [And] are at his instance permanently protected
(7) From disclosure by himself or by the legal advisor,
(8) Except [when] the protection [is] waived.
All eight of those factors must exist when attempting to protect communications via attorney-client privilege in Florida.
But what does that really mean to you and me? How does that work in the real world, with real people and real situations?
- If you are seeking legal representation/legal advice but don’t end up hiring that attorney, all your communications relating to that solicitation are still protected.
- Conversations you have with the staff working directly for your attorney regarding legal advice in your representation can also be protected.
- You can waive attorney-client privilege by sharing the information you gave to your attorney with a third party, like a friend or family member. Once privilege, in regards to that shared information, is waived you cannot reassert it.
- How you found your attorney is often not protected under attorney-client privilege.
- Attorney-client privilege must be asserted in relation to legal advice. If you are calling your attorney for business advice and not legal advice, that communication is not protected.
- Your identity as a client of an attorney isn’t necessarily protected under attorney-client privilege.
- The Crime-Fraud Exception that says when a client seeks or obtains a lawyer to aid in the commission of a crime or in the planning of future criminal activity, privilege does not exist.