Keeping client communications confidential is one of the most important responsibilities a personal injury lawyer has. Attorney-client privilege is an important legal concept that protects most information you provide to your lawyer. However, there are times when attorney-client privilege does not apply, so it's useful for you to know this information before you begin a conversation with a personal injury lawyer.
What Is Attorney-Client Privilege?
Attorney-client privilege is one of the most sacred aspects of legal representation. People turn to the assistance of a lawyer when they have a problem they need help with, usually of a confidential nature. They do not want their lawyer to go around talking about them and their legal issue.
The attorney-client privilege respects this desire to keep communications between a lawyer and client confidential. New York law prohibits the lawyer from disclosing confidential communications in any legal arena without the client's permission. Additionally, the client cannot be compelled to disclose privileged communications with their attorney.
What Does New York Consider a “Privileged Communication?”
According to the New York State Bar Association's New York Rules of Professional Conduct, a lawyer must not knowingly reveal confidential information, which is any information gained during the representation of a client that is any of the following:
- protected by the attorney-client privilege
- likely to be embarrassing or detrimental to the client if it is disclosed
- has been requested to be kept confidential by the client
Attorneys face serious consequences if they violate the state's Rules of Professional Conduct.
Attorney-Client Privilege Exceptions in New York
The New York Rules of Professional Conduct specifically enumerate certain exceptions to the attorney-client privilege, including:
To Represent Your Interests
A lawyer is generally allowed to reveal client communications to advance the client's best interests and is reasonable under the circumstances or customary in the professional community. For example, if you told your personal injury lawyer you were injured in a car crash, your lawyer may repeat this information to the insurance company for the purpose of securing a settlement on your behalf.
To Prevent a Crime
A lawyer can use confidential information to prevent the client from committing a crime or to prevent reasonably certain death or substantial bodily harm.
To Protect Their Own Interests
A lawyer is also allowed to share confidential information to protect their own interests, such as:
- To get advice about whether they have complied with the rules of professional conduct
- To defend against an action brought against them for wrongful conduct
- To establish or collect their fee
- To comply with other laws or a court order
Each of the above examples is explicitly discussed in the Rules.
To Withdraw a Previous Opinion
Suppose a lawyer made a written or oral opinion, and a third party is relying on this opinion. In that case, the lawyer can reveal client communications to the extent necessary if the third party has relied on materially inaccurate information or is using the information to further fraud or a crime.
Because You Gave Consent
Attorney-client privilege is intended to protect the client. If the client chooses to waive this privilege, they can. In that case, the lawyer can reveal confidential communications so long as the client provides “informed consent.”
The attorney-client privilege is sacred and should be fiercely defended. A lawyer can explain what is – and what is not – privileged communication when you meet with them.
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