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How Attorney-Client Privilege Works

Posted on in Criminal Law

attorney-client privilege, Illinois criminal defense lawyerIn order for the legal system to work, clients and lawyers need to be able to communicate candidly. In many ways, lawyers act as their clients' representatives in court. In order to do this well, it requires a complete understanding of what a client knows. Otherwise, a lawyer could be surprised over the course of a case by a fact in which the client did not want to disclose. This is especially true in criminal cases. Clients may not want to confess to things that make them look guilty and fear that they cannot trust their lawyer. In order to promote this sort of candid conversation, the law includes a doctrine known as “attorney-client privilege.” This privilege prevents attorneys or clients from being forced to testify about things that they discussed in private.

When Attorney-Client Privilege Applies

Importantly, not every conversation between lawyers and clients qualifies for protection under attorney-client privilege, but the privilege may also apply to more than just conversations directly between lawyers and clients. In order to receive protection from being revealed via forced testimony, the conversation must meet four qualifications. The conversation must be:

  1. A communication;

  2. Between a lawyer and a client or agents of either, like a legal secretary;

  3. Made in confidence; and

  4. For the purpose of providing legal services.

Most of these qualifications are fairly straightforward, but the idea of what counts as confidential bears further examination. A communication does not need to take place just between a lawyer and client in order to qualify as confidential. Other people may also be present to the extent that they make communication between the lawyer and client easier. For instance, if a client's accountant is present for a conversation in relation about a white collar crime case, this would probably still be confidential.

Exceptions to Attorney-Client Privilege

Clients should also be aware of the limits of attorney-client privilege. There are times when an attorney can be forced to testify about conversations between him or her and his or her client. One of the most important exceptions is the crime-fraud exception. This exception prevents attorney-client privilege from extending to ongoing crime and fraud. Communications between lawyers and clients are protected to the extent that they relate to past crimes, but a client cannot come into a law office and request advice about how to get away with current or future crimes.

Attorney-client privilege also fails to extend to certain other cases, such as in a dispute between two former clients that the attorney once represented together. Similarly, attorney-client privilege also may fall away in cases where the lawyer and the client themselves end up embroiled in a dispute about the representation.

Consult with an Experienced Illinois Attorney The law allows clients charged with crimes to confide in their lawyer. If you are currently facing criminal charges and want to learn more about your options, contact a McHenry County criminal defense attorney today.
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