Lawyers are governed by rules. Those rules exist to aid and protect both lawyers and their clients. The American Bar Association (ABA) has set forth those rules in it’s Model Rules of Professional Conduct (MRPC). States can either choose to follow the ABA’s model rules or enact their own rules, which might be more restrictive.
Attorney-Client Privilege Rule
The purpose of the attorney-client privilege rule is to recognize the importance of communications, both written and verbal, between attorneys and their clients. It is intended to foster open and honest communication between clients and their attorneys. Attorneys need to have all of the information, both good and bad, to properly represent a client. The attorney client-privilege rule encourages this by requiring attorneys to keep those communications confidential except in limited circumstances.
Attorney client privilege and confidentiality is governed by Rule 1.6. While North Carolina's Rule 1.6 largely follows the ABA’s model rule 1.6, there are some differences. North Carolina provides additional exceptions and clarifications to the model Rule 1.6
North Carolina Rule 1.6a states that “[a] lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation or the disclosure is permitted by paragraph (b).”
“Informed consent” happens when a client authorizes the disclosure of the information shared with the lawyer after being advised as to the consequences of disclosure.
“Disclosure is impliedly authorized to carry out the representation” is somewhat self-explanatory. For example, an attorney representing a client in a personal injury case is permitted to disclose information provided by the client to the attorney on the other side during settlement negotiations. Or an attorney in a Charlotte, North Carolina workers’ compensation case who is representing a client at a N.C. Industrial Commision hearing is permitted to disclose information provided by the client during the course of the hearing. What clients may not understand is that it also permits a lawyer to disclose communications to members of the lawyer’s team (secretary, paralegal, other attorneys in the practice). The duty of confidentiality extends to those people as well.
It is important to understand that Rule 1.6 applies to information the lawyer receives while engaged in the active representation of the client. It does not apply to information received from prospective clients or former clients. That information is governed by North Carolina Rule 1.18 (prospective clients) and Rule 1.9(c)(2) (former clients).
The attorney-client privilege only applies when the client intends the communications to be confidential and the lawyer is acting in their professional capacity. Generally speaking the privilege does not apply if a third-party is present for conversations, or copied on communications, between the lawyer and client. A client may think that bringing a trusted friend with them to sit in on a meeting with their lawyer to discuss their personal injury claim is a good idea. It is not. By having a third-party present during conversations between the attorney and the client, the attorney-client privilege will be destroyed and that friend could be called to testify in court about the nature of the communications. In addition, if a lawyer gives advice to a friend as a friend, then that is exactly what it is - friendly advice; the attorney-client privilege would not apply.
The attorney-client privilege belongs to the client, not the attorney. The end of the attorney-client relationship, say at the end of a case, does not end the privilege.
Elements of Attorney-Client Privilege
In order for the attorney-client privilege rule to apply, the North Carolina courts have routinely found that the party asserting the privilege must show the following 5 elements:
- An attorney-client relationship existed when the communication was made;
- The communication was made in confidence, generally meaning that just the attorney and client were present;
- The communication relates to a matter about which the attorney is being professionally consulted. If you are consulting an attorney about an injury resulting from a car accident and then start talking about how your sister stole all of your money, the attorney-client privilege would likely only apply to the communications about the car accident;
- The communication was made in the course of giving or seeking legal advice for a proper purpose although litigation need not be contemplated. This means that you were seeking advice as a client, not having an information conversation with say your cousin at a family wedding; and
- The client has not waived the privilege. A client who discloses to a third-party his/her communications with his/her lawyer, waives the attorney-client privilege.
In Re Investigation of Death of Miller, 357 N.C. 316, 335-36 (2003).
Exceptions to the Rule
North Carolina’s Rule 1.6(b) sets forth 8 exceptions to the attorney-client privilege rule in which the rule will not apply and communications can be exposed. These include:
- Criminal Acts. This generally applies to future acts, not past.
- preventing a client from committing a crime. If a client tells a lawyer that he intends to rob a bank in two days time, the lawyer can call the police and disclose the crime. If the client tells the lawyer that he robbed a bank 5 years ago, the lawyer likely cannot disclose that information.
- preventing death or bodily harm. If a client tells his/her lawyer that he plans to kill his sister, the lawyer can call the police and disclose the crime.
- preventing, mitigating, or rectifying the consequences of a client’s criminal or fraudulent act in the commission of the lawyer’s services were used.
- Issues with the Lawyer
- obtaining legal advice about a lawyer’s following the model rules. If a client has concerns that his/her lawyer has not followed the model rules and talks to another lawyer about those concerns, then the attorney-client privilege is destroyed.
- in a dispute with a lawyer, whether bringing a claim or defending against one. If a client brings suit against his lawyer for something like malpractice, then the information disclosed during the representation is a key component of that suit and the attorney-client privilege will be destroyed.
- Complying with a court order. Courts may order that information be turned over that destroys the attorney-client privilege.
- Complying with the rules of an assistance program approved by the North Carolina State Bar or North Carolina Supreme Court.
Our Charlotte, North Carolina Attorneys Can Help
The Charlotte, NC based lawyers at Rosensteel Fleishman, PLLC are experienced attorneys who understand the attorney-client privilege and will make sure that your communications are protected. Please contact our office at 704-714-1450. There is no fee for an initial consultation.