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Are There Times When Attorney Client Privilege Can Be Waived?


Anything you tell your attorney is private and confidential. This is a maxim of our American legal system, and a vow that your attorneys are sworn to uphold. But is attorney client privilege always present? Actually, there are times when it can be waived—sometimes purposefully, but also sometimes accidentally, when attorneys and clients aren’t careful.

Crime Exception

It should go without saying that your attorney does need to disclose anything that you tell him or her, that indicates that you are going to commit a violent crime, and possibly, any non-violent felony. This is rare, and should be pretty obvious.

Who is the Client?

Remember that the attorney client privilege applies between you, as the client, and your lawyer. That seems obvious. But what if someone else overhears what your attorney is saying? Sometimes this happens accidentally, such as when you are speaking to your attorney somewhere in public, like the courthouse.

Other times, it happens purposefully. Often, a client will want a spouse, parent, friend, business partner, or other trusted advisor or friend to meet with the lawyer with them. The problem is that the third party that is there with you, is not the client. That means that whatever he or she hears your attorney tell you in your meeting, can potentially be told to the other side if they ask.

Loose Lips

Waiver of privilege often happens, when clients accidentally tell other people what their lawyer told them. If you go to the doctor, or you go to a local governmental office, or you’re in a business meeting, or anywhere else, and say that your lawyer told you X, Y and Z, you have now waived any attorney client privilege when it comes to that information.

Remember that you can’t “make” something confidential that is not. For example, if you have a document that has no confidentiality, privilege or protection at all, it does not magically become protected by attorney client privilege because you give that document to your attorney (although there may still be other ways to keep whatever you give to your attorney, from being discovered by the other side).

Businesses and Privilege

When it comes to businesses, you should clarify who your attorney represents—you, or your business? You are a separate legal entity than your business. If your attorney represents your business, anything that is personal in nature that you tell the attorney, unrelated to the business or the business’ legal affairs, may not be confidential, as you, personally, are not the client.

If your attorney represents your business, communications between your employees, and the lawyer, will be considered privileged. This is so long as the communications between the lawyer and the employees relate to the business, or the scope of the lawyer’s representation of the business.

Call the West Palm Beach business litigation attorneys at Pike & Lustig today for help if you have a commercial litigation matter and need legal help.

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