Clients sometimes get the concept of attorney-client privilege and confidentiality mixed up and with due case. These terms are used interchangeably in legal circles, on television programs and even in commercials. Attorneys understand that these two concepts are different, but they often fail to explain them correctly to their clients.
In general, both the concept of confidentiality and that of attorney-client privilege encourage a client to trust their attorneys. Clients feel free to tell their attorneys everything, no matter how damaging, in order to get the best advice possible. While both concepts prevent an attorney from revealing what they know about a client and the case, the duty of confidentiality goes a bit further and tells the lawyer how they may use the information.
A lawyer can divulge information that a client has provided if they believe that the information is necessary to prevent substantial harm or death. If your attorney believes that the information you have provided could prevent the harm of another person, they can divulge that information to the authorities and have a duty to do so.
Disclosure of information can occur if your attorney believes that it can prevent the commission of fraud to another. For example, if you hire an attorney to draw up a contract for your business’s investors and the attorney later discovers that your activity will be fraudulent, the attorney has a duty to disclose the information.
This does not mean that your lawyer can talk to just anyone about your case to obtain advice. What it does mean is that an attorney can talk about your case with another lawyer in an attempt to maintain ethics in a case. If a lawyer is uncertain if an action they are considering will break the ethical rules of law, they can use the information your provide to seek clarification.
A lawyer can disclose the information you provide in order to defend themselves. For example, if you file a malpractice claim against your lawyer, they can use the information you have given them to defend themselves. If the lawyer is charged criminally or could be subject to civil liability, they are permitted to disclose information in their own defense.
There are some things that a lawyer cannot keep confidential. For example, if you disclose child abuse information, the lawyer may have a duty to alert the authorities. This varies from state to state, but a lawyer generally has a higher duty to protect others from criminal activity.
Many of these issues do not arise in personal injury cases, but they can. Do not assume that you can give your lawyer sensitive information that you don’t want discussed. If you have any questions as to what your lawyer can share, ask before you speak. Losing confidentiality is also something that you want to be careful of. Here’s how it can happen.
Most lawyers insist on meeting in their office or other private venue to avoid this happening. If you decide to meet over lunch or in another public place to discuss your case, anything overheard by a stranger can be used against you. Yes, you may be speaking directly to your attorney and, no, your attorney cannot repeat what you say, but if someone else hears your conversation, they can certainly be called to testify against you.
Chances are you are going to land in jail over a personal injury, but this is important to be aware of nonetheless. If you are in jail and discuss your case, anyone that overhears you and the information you share can be asked to repeat what you have said. Keep in mind that most phone conversations from a jail or police station are recorded and monitored, even if you are talking to a lawyer.
It is not unusual for people to bring a friend or family member to a meeting with a lawyer simply for moral support. If your lawyer forgets to ask that this person wait in the lobby, make sure you do. The person that you have tag along has no expectation of confidentiality. In other words, anything you say in front of them can be used in court if the opposing counsel is so inclined.
Confidentiality between you and your attorney is just that. Between you and your attorney. If you choose to tell someone else what you and your lawyer discussed, confidentiality is lost. Don’t make the mistake of divulging your conversation to a friend of family member. You may have shared the information with your attorney, but as soon as you provide the same information to someone else, it can be used in court.
You shouldn’t be afraid to speak to your attorney openly and honestly, no matter the situation. Whether you have been charged with a crime or injured in an accident, the information you provide is meant to assist your attorney in building a successful case.
If you have been injured in Miami or the surrounding area, call our office. We will provide you with a free consultation and advise you of the options available to you under Florida law. Call now or browse our website for more information about our firm and how we can assist you.