Your humble author does his share of criminal-defense work, mostly court-appointed. Someone who is accused of committing a crime has a variety of constitutional (due process) protections, such as the famous right to remain silent (repeated on thousands of TV show episodes) and the right to a jury trial. The accused person, as a party in a legal proceeding, also has the right to invoke attorney-client privilege in order to keep certain statements out of evidence. Unfortunately, people do not always preserve this privilege and accidentally waive it without any intent to do so. This can prove detrimental to someone’s legal strategy.
The essence of this rule is as follows. Attorney-client (or lawyer-client) privilege, when in effect, allows the client to prevent disclosure of confidential communications between the client (or the client’s representative) and his/her/its lawyer or that lawyer’s representatives, such as a paralegal and a co-counsel. The rule has some complexities, including exceptions for fraud and issues about who qualifies as “the client,” but for purposes of this blog post think of it as a way to keep a legal adversary from forcing you to repeat what you have said or written to your lawyer or legal team. The underlying facts of a communication are not covered by this privilege, though.
The issue I am addressing here is the waiver, whether intentional or inadvertent, of the privilege by the client. If you meet with your lawyer to discuss your motor vehicle accident case, for instance, and then repeat the substance of that conversation to your best friend, sister, neighbor or someone else who is not your legal representative, you have waived the privilege. If you rehash that conversation on Facebook, you have waived the privilege. If for some reason you call the other driver from that motor vehicle accident and tell him or her what your lawyer said, you have waived the privilege. The effect of the waiver—sometimes called “destruction”—of the lawyer-client privilege is that a particular conversation with your legal counsel can be revealed and used against you in or out of court.
The privilege works in, basically, the same way for a criminal case. If, for instance, you tell a co-worker or parent what you and your lawyer discussed at a recent meeting about an OUI prosecution, you have taken a huge risk. You might have revealed something incriminating to your attorney, or your attorney might have explained an important strategic plan. If your co-worker or friend decides to contact the police or the district attorney, your legal defense is compromised. Therefore, it is best to discuss your legal matters only with your legal representatives.