Your Personal Injury Attorney-Client Privilege Explained

Attorneys act as representatives for their clients in court, making arguments and statements based on their client’s position in a case. The arguments an attorney can make to advance their case depend on the facts of the case and conversations between the attorney and client. 

To develop a legal strategy and do their jobs well, attorneys need a clear view of the facts and the information their clients have at hand. In other words, they need honesty and openness from their clients. 

In order to encourage honesty between a client and their attorney, communications between the two are protected by attorney-client privilege. This shields a client from being forced to testify about conversations with their lawyer, including specifics of what they discussed. Attorney-client privilege also protects the attorney from having to share details of their discussions with a client. 

Attorney-client privilege is a cornerstone of the legal profession. The privilege allows clients to discuss sensitive facts and concerns with their lawyer without worrying that the conversations will be used against them in court. At the same time, encouraging a client to be fully honest with their attorney allows the lawyer to provide the best legal advice they can in the situation. 

What Is the Definition of Attorney-Client Privilege? 

It is important to understand that not all words spoken between a client and an attorney are covered by attorney-client privilege. For attorney-client privilege to apply, there must be communication between the client and their lawyer that seeks legal advice, with the intent that the communication remain confidential. For example, an email from a client seeking legal advice on a particular issue would be privileged from disclosure. However, an email from a client to their attorney discussing the weather or a sports game would not be privileged. 

When the topic of attorney-client privilege comes up, courts will examine: 

• Whether any type of legal advice is sought by the client; 
• Whether the advice is sought from a legal professional acting in their capacity as a lawyer; 
• Whether the communications relate to that particular purpose; 
• Whether the communications were made by the client with an expectation of confidentiality; 
• Whether the communication warrants protection; and 
• Whether or not the protection was waived in any way.

Attorney-client privilege can be waived if the client shares the communication with a third party or seeks legal advice from their attorney in a non-private manner. For example, an attorney-client conversation in a crowded elevator can waive the privilege since there is no expectation of privacy. 

How is Attorney-Client Privilege Formed? 

For attorney-client privilege to exist, an attorney-client relationship must be created. A mere conversation between a potential client and a lawyer does not, by itself, create an attorney-client relationship. The relationship – and attorney-client privilege – is not formed until both parties agree to legal representation. This agreement doesn’t necessarily require a formal contract. 

An attorney-client relationship can be demonstrated by any express acknowledgment of representation. For example, if an attorney drafts a letter or files a pleading on behalf of an individual, that indicates an attorney-client relationship exists. Once the attorney-client relationship exists, either expressly or implied by conduct, communications can be subject to privilege as long as they pertain to the legal matter at hand. The privilege can also apply to communications between a client and a member of the lawyer’s staff, such as a paralegal or secretary. 

In the context of a personal injury case, for example, the attorney-client privilege can be formed at the initial consultation or after the lawyer and client sign an engagement letter to proceed with representation. Confidential matters subject to attorney-client privilege can then include details of the accident, theories about who’s at fault, the client’s actions during and after the accident, and any other facts or comments relevant to the case. 

What Are Exceptions to Attorney-Client Privilege?

There are several exceptions to the attorney-client privilege, including the following:  

• Non-Legal Communications. Since the privilege applies only to communications that are within the scope of legal representation, other communications or documents might not fall within the privilege. For example, if a corporate client brings a box of files to their attorney simply to prevent their disclosure, the attorney-client privilege does not automatically apply to information in the documents. The same goes for discussions between an attorney and a client that don’t relate to the case at hand. 
• Non-Private Communications. Discussions in a public place or a public forum that can be viewed by other people can break the attorney-client privilege. Only private discussions intended to be confidential are covered by attorney-client privilege. 
• Representation of Multiple Clients. If a lawyer represents two or more clients simultaneously, and those clients later have a dispute between them, communications between the lawyer and either client could potentially be disclosed. This is known as the common interest exception to attorney-client privilege. 
• Crime or Fraud. The crime-fraud exception applies when a client uses an attorney’s services to plan a crime or assist with a crime. This is true whether the lawyer knows what the purpose of the meeting is or not. However, the crime-fraud exception is different from discussions about an already completed crime. If the lawyer is defending a client against criminal charges, conversations about the underlying crime remain subject to attorney-client privilege. The purpose of this exception is to maintain respect for the legal profession and prevent clients from cloaking criminal conduct behind the attorney-client privilege. 

If you are unsure about whether your communications are protected by attorney-client privilege, it is crucial to consult with your attorney. 

Attorney-Client Privilege in a Personal Injury Case 

Many rules of attorney-client privilege are critical for business clients and criminal defendants. However, the privilege is crucial to personal injury claimants as well. If you have been injured in an accident and have hired an attorney to help with your case, you want to make sure your communications with the lawyer are kept as confidential as possible. This means observing the guidelines surrounding attorney-client privilege when you are sharing facts about your accident and potential claim. 

Mistakes can lead to waiver of the privilege and potential disclosure of sensitive information. An experienced personal injury lawyer can help safeguard your private information and use the attorney-client privilege to your advantage. 

It is important to remember that attorney-client privilege is a fundamental principle of law that protects communications with your lawyer, but it is not absolute. Some aspects of communication between an attorney and client might not be privileged, or the privilege can be waived if the parties are not careful about their communications. 

If you have been hurt in an accident, you have important legal rights, including the right to confidentiality through attorney-client privilege. To learn more about your rights and to pursue fair compensation for your injuries, consult a Portland personal injury lawyer today.

Attorney-Client Privilege and Your Personal Injury Case

If you were injured in an accident in Portland, OR, please contact our Portland personal injury lawyers at Tillmann Law Personal Injury Lawyers to schedule a free consultation today.

We proudly serve all throughout Multnomah County in Oregon. Visit our office at:

Tillmann Law Personal Injury Lawyers
101 SW Main St. #1905
Portland, OR, 97204
(503) 773-3333
Hours: Open 24/7