Rules Governing Attorney Client Privilege

The attorney - client privilege is one of the most important underpinnings of the legal system in the United States of America and the relationship between a lawyer and his or her client in the United States. The purpose of the privilege is to ensure that the client understands that the information that he or she shares with his or her lawyer will not be able to be used against him or her in any trial or other legal proceeding. With this said is a client shares information with his lawyer that indicates the client is actively engaged in illegal activity and that illegal activity is going to continue the privilege can be revoked if the lawyer believes that the information received will aid and abet a client in committing a crime.

Additionally a lawyer is NOT permitted to allow his client to lie on the stand. If this is happening the lawyer has a responsibility to ask his or her clients questions to try and clarify the information and ensure it is accurate. If the client does not follow the lawyers lead and continues to commit perjury (lying to the court) the lawyer must ask the court for a sidebar ( a private audience) and let the judge know that the lawyer is no longer able to represent his or her client. The lawyer can not come out and state that his or her client is lying and the lawyer cannot be called as a witness to testify against his client in a future procedure but the reality is that when a lawyer asks to be excused in the middle of a trial due to circumstances beyond his or her control and that legal ethics prevent the lawyer from going forward everyone in the courtroom who understands the law knows that the client has just perjured himself on the stand.

The likely outcome of this action will be that the court will declare a mistrial and the entire proceeding will have to begin again with another lawyer appointed or retained to represent the client who just perjured him or herself on the stand. Courtrooms may be changed. A new judge may be asked to hear the case but the reality is lawyers and judges are just like everyone else and they talk. So if you perjure yourself on the stand you can be sure that all of the staff in the courthouse, clerks, court reports, sheriff deputies, lawyers and judges will know and there is a 99% chance this information will impact your new trial. So if you and your lawyer decide that you should take the stand tell the truth. In criminal cases if you are the defendant you do not have to take the stand and the fact that you do not take the stand cannot be used against you. The prosecutor cannot refer to your choice of not taking the stand in his or her closing argument. It is the prosecutors job to prove the case against you beyond a reasonable doubt without any help from you. So if you are thinking of taking the stand talk to and listen to your lawyer. Often criminal defendants believe they can out smart the judge and the jury and the other lawyers involved. This may happen in movies but is does not tend to happen in real life so listen to your lawyer.

There is one other thing that you must know about attorney-client privilege and that is that it can be waived by the client either on purpose or by accident. When it is done intentionally it is often done with the approval of your lawyer and for strategic reasons. This can happen regularly and it is OK when done correctly. The other time that attorney-client privilege is waived is by mistake. Attorney-client privilege is limited to contact between the client and the lawyer and in some cases those who work for the lawyer - paralegals, investigators, secretaries etc. The privilege extends to these people under the umbrella of the lawyer. When the attorney-client privilege is waived by a mistake it is often due to behavior of the client. If you bring a third person into your conversation with your lawyer it is extremely likely that a court will find you have waived the privilege. If you choice to share your conversation with your lawyer on a social networking site like Facebook or MySpace chances are the court is going to decide that you, the client, has waived the privilege. The purpose of the privilege is to protect the client so if a lawyer makes a mistake the chances are the court will maintain the privilege as a mistake of the lawyers part puts the client at risk. The clients behavior puts him or herself at risk so you are less likely to be protected.

If you feel that you have to discuss your case with someone talk to your lawyer and find out what other relationships might allow some privileged communications. In certain circumstances there is a husband/wife privilege. This privilege can be waived and it is only good during the course of a marriage not before and not after. You also may have the doctor/patient privilege. This tends to be a pretty strict privilege but with that said it does not apply in cases of child abuse and neglect and it can be waived if the doctor believes that you are a danger to yourself or others or that you are in the middle of committing crime or you are about to commit a crime. Keeping a diary does not create a privilege and telling your best friend is not privileged. A relationship with a religious leader may be protected but once again not always so talk to your lawyer before you confide in anyone else.

The best way to ensure that you are not faced with having to wade through what you can and cannot say to who about what is to avoid illegal activity in the first place.