The attorney-client privilege is one of the foundational bedrocks of the U.S. legal system. As the client, it allows you to be fully honest with your attorney without fear. That candor helps your lawyer give you useful and accurate advice, and prepare a strategy to deal with your legal matter.
When revealing privileged information is not malpractice
A lawyer who violates privilege arguably commits legal malpractice. However, there are exceptions to the rule. In some cases, attorneys are allowed (or must) disclose communications from their client to a third party. Important examples include:
- The attorney reasonably believes disclosure is necessary to prevent certain death or substantial bodily harm.
- The attorney reasonably believes disclosure is necessary to prevent their client from committing a crime or fraud that is likely to harm someone else’s property or financial interests.
- The client has waived privilege.
- Disclosure needs to be included in court filings or shared with support staff for the attorney to do their job.
- The attorney must disclose certain information to defend themselves from a legal malpractice claim.
These exceptions mainly exist to help you resolve your legal issues or prevent new ones from arising. Most likely, your lawyer will advise you of them ahead of time to get your permission or at least make you aware.
Who should pay for a privilege violation?
A disclosure that damages your case could be grounds for a legal malpractice lawsuit. Besides being a betrayal of your trust, violating attorney-client privilege can give the other side an unfair advantage. Any resulting financial harm you suffer could be your lawyer’s responsibility, not yours.