If you have ever been accused of a crime, such as a federal drug crime, you may have wondered or worried about whether you can tell your criminal defense lawyer everything. The answer is a qualified, “Yes.” The reason you can tell your lawyer everything is because of the attorney-client privilege.
The Sixth Amendment to the United States Constitution guarantees every person accused of a crime the right to counsel—meaning a lawyer to defend you. In order to give you the best possible advice, a lawyer needs to know as much about the facts of the case as possible. If a lawyer does not know a crucial fact, the lawyer’s advice might be different than if the lawyer knew that fact. For example, if a client was in a fight and tells the lawyer that he acted in self-defense, the lawyer’s advice might be to go to fight the case and go to trial. But if it turns out that the client followed the other person as he walked away, yelled at him, “I’m going to kill you,” and then lunged at the person, then it sounds like the client was the aggressor, and the best advice may be to negotiate a favorable plea deal.
The law has a way to give you confidence that you can tell your lawyer anything, and the lawyer will not be able to disclose it to anyone or be forced to tell anyone, including a judge, a prosecutor, or a police officer, except in very limited situations. What gives you that confidence is the attorney-client privilege.
The law says that, if you tell your lawyer something in confidence, for the purpose of getting legal advice from the lawyer, then the lawyer cannot tell anyone else outside the attorney-client relationship or be forced to tell anyone else outside that relationship, again, with very limited exceptions. This gives you confidence that you can be open and honest with your lawyer, which helps the lawyer give you the best possible advice. That is why the law recognizes the attorney-client privilege.
The times when a lawyer can reveal, or be forced to reveal, attorney-client privileged information include, although they are not limited to:
-When the client reveals the information to someone outside the attorney-client relationship. At that point, it is no longer considered “confidential.”
-When the client is trying to use the lawyer’s services to commit a crime or fraud against someone else. If the client admits to the lawyer to having committed a crime or fraud in the past, then the lawyer still cannot disclose the information. It is only when the lawyer‘s services are being used to commit a crime or fraud that the privilege does not apply. So, you cannot ask for a lawyer’s advice on how to get away with committing a future crime.
-Evidence: You cannot ask a lawyer to hide evidence for you. For example, you cannot ask a lawyer to hide the murder weapon.
-Illegal acts: You also cannot ask a lawyer to do something that would be illegal. For example, you cannot ask a lawyer to put cocaine or child pornography in the lawyer’s safe. Possession of illegal drugs or child pornography is illegal, and you would be asking a lawyer to possess them, so the lawyer would be doing something illegal.
-If you sue the lawyer or accuse the lawyer of something illegal or unethical. You cannot, on one hand, claim the lawyer did something wrong, and on the other hand, prevent the lawyer from defending herself or himself by refusing to allow the lawyer to disclose communications that might prove the lawyer did nothing wrong.
These exceptions are narrow. Because of the attorney-client privilege, you can feel secure that what you tell your lawyer in confidence will be kept in confidence by your lawyer. As an experienced criminal defense attorney, if I believe I cannot keep confidential something a client tells me, I will let the client know so that the client does not tell me something I can’t protect.
The attorney-client privilege protects your rights. Because of it, you can freely share information with your lawyer. That means the lawyer will be able to give you better advice.