The attorney client privilege secures the client from the potential sensitive information being disclosed to other people. The law requires that an attorney does not reveal any communications or letters between him/her and his/her client to any third party, which includes business associates, competitors, government agencies and even criminal justice authorities. This requirement helps the client to speak with his/her attorney honestly and without a fear that his/her sensitive information will be disclosed.
The attorney client privilege has existed for a long time and has been practiced way back in the Roman Empire.
In order for the communication to qualify for the attorney client privilege, it needs to be done in confidence and between the privileged persons (an attorney and his/her client) with the desire of receiving or providing legal assistance. Many clients assume that the attorney/client relationship exists, when it actually was not established. If a person just consulted with an attorney on the phone and shared some sensitive information without retaining the attorney to represent her or him, it is probable that the attorney client privilege is nonexistent here. The attorney often acknowledges the representation of a person if he or she sends the person a letter agreeing to represent him or her, by orally agreeing to the representation or, finally, by sending the contract fees to the future client.
It is important to know that not every communication between the attorney and the client protected by the attorney client privilege. For instance, if a shared information can be obtained from a non-privileged source, it is not protected by the attorney client privilege.
Since it is the client who holds the attorney client privilege, the client is also the one who can assert or waive it at any moment.
Furthermore, the law established the certain exceptions to the attorney client privilege. The most common exceptions to the privilege are the death of the client, fiduciary duty, crime or fraud exception and common interest exception. Fiduciary duty exception means that a corporation does not always has the right to assert the attorney client privilege. For instance, if corporation shareholders wish to pierce the corporation’s attorney privilege, the corporation cannot just assert its attorney client privilege. Crime or fraud exception to the privilege applies if a client seeks advice from an attorney to assist with committing a crime of fraud. However, if the client has completed a crime and seeks the legal help, such communication is under the attorney client privilege unless the client is seeking advice on covering up his or her crime. Common interest exception to the privilege applies if two clients are represented by the same attorney. In this case, neither client may assert the attorney client privilege against the other party in the litigation process.