When Does Client Confidentiality Not Apply?

Client confidentiality is critical in an attorney-client relationship. However, there are times when communication is not protected, as attorney-client privilege is not absolute. If you want to discuss confidentiality terms in more details, set up a free consultation today.

When Client Confidentiality Does Not Apply

The following types of information given by a client to an attorney cannot remain confidential: 

• Critical Evidence: An attorney may have to turn over any critical pieces of evidence relevant to a case. 
• Perjury: Attorneys have a duty to the court not to present evidence they know to be false, fraudulent, or perjured. An attorney can subject themselves to disciplinary action and possibly disbarment if they know a client is going to or has lied in their testimony given under oath. Additionally, if the opposing counsel finds out a party has “perjured” themselves, the party’s credibility will be ruined, and they may be held in contempt of court. 
• Threats: An attorney must report any threats of harm made by a client. For instance, a personal injury victim may threaten to injure the at-fault party or a witness for the opposing counsel.  

The Crime-Fraud Exception

The crime-fraud exception will come into play when there is any communication by a client with the intent to commit or cover up a crime or fraud. Even if their attorney did not have knowledge of or participate in the crime or fraud, the exception could apply. In these situations, the client must have: 

• Been in the process of committing a crime or fraud; or,
• Communicated with the intent to further the crime or fraud or to cover it up. 

An attorney may be ethically required to notify the authorities, as most states allow or mandate attorneys to divulge client information that can prevent serious injury or death. They can also be subpoenaed to disclose any relevant communications they had with their client. If an attorney fails to report client communication that falls under the crime-fraud exception, they risk disciplinary sanctions and even criminal charges. However, past crimes and fraud committed by a client may be covered under client confidentiality, especially if it is public knowledge. 

How Client Confidentiality Can be Waived Without Knowing It

Confidentiality waivers can be intentional or accidental. Generally speaking, talking or writing about privileged communication in a non-confidential context can prevent protection. There are several ways that client confidentiality can be unintentionally waived. For example, when a client:  

• Posts confidential information on social media. 
• Allows another person to be present at an attorney-client meeting.
• Adds another person other than their attorney to an email.  
• Uses a work email address to communicate with their attorney. 

In these cases, the court can view your actions as you no longer wish the information to remain confidential, even if you did not intend to waive attorney-client privilege. Generally, saying or writing privileged communication in a non-confidential context can prevent protection. For instance, just having an attorney present or on an email does not automatically shield the conversation. The attorney must be providing legal counsel. However, whether the exception or waiver applies will typically depend on the facts of each case, evidence rules, statutes, and the court’s decision.  If you want to discuss your case in further details, speak to an experienced attorney today at (215) 569-0200.