By Benjamin A. Tracy, Columbus Criminal Defense Lawyer and Civil Rights Attorney
This is the eighth part of a series of posts about what evidence can, cannot, should, and should not, be used in court.
Part VIII, Rules to Help Society – Privileges and the Attorney-Client Privilege.
In addition to the general rules about what evidence is and is not allowed to be presented in court there are certain categories of relationships that people can develop that can allow them to avoid testifying, prevent them from testifying, or allow them to prevent the other person from testifying. The classic example of this is the attorney-client privilege.
One commonly held belief amongst clients and potential clients is that anything at all that is said between an attorney and his client is privileged and forever shielded from disclosure. This is not the case. The attorney-client privilege protects much of what is said, but not everything. It is important to have an attorney who understands this and knows how to preserve the privilege.
In order for the attorney-client privilege to exist, there has to be an attorney-client relationship. The mere fact that you might run into an attorney at a party and speak to them about something, does not mean that the communication is privileged. In addition, there cannot be (generally) anyone else present. That is, if a client says something to an attorney which would otherwise be privileged, but some third party is present and hears it, there is no privilege. For this reason, while some folks might like to have a friend present when they speak to an attorney for moral/emotional support, it is rarely a good idea.
It is also important to note that the attorney-client privilege only protects certain types of communications. Specifically, it only protects communications made for the purpose of obtaining or giving legal counsel. In other words, if a client tells a lawyer something in order to seek legal advice of some sort, that communication is protected. If a lawyer tells a client something related to providing legal advice, that communication is protected. Other communications, however, are not protected. In short, if a client and a lawyer sit down in the lawyer’s office, there is no one else around, and the client tells the lawyer something, it is still only privileged if he is telling it in order to obtain legal advice. A conversation between a lawyer and his client, for instance, about an Ohio State football game that they both watched (unless it is related to some legal matter in which client is involved) will not be privileged.
In the case of an attorney-client privilege, the client, as we say in law, “holds the privilege.” That is, the attorney, no matter how much he might personally want to, cannot break the privilege if the client does not give him permission to. Only the client can decide to divulge information otherwise protected by privilege. There are a few exceptions, but the most important one is this – A lawyer cannot aid or further an ongoing or future commission of bad faith acts by the client. Practically speaking, this means that, as a client, if you tell a lawyer about something bad you did in the past, it will be privileged and the attorney, without consent, could not reveal that communication. However, if, as a client, you tell a lawyer about something bad you are doing currently or planning to do in the future, it may not be privileged and the lawyer may have an ethical duty, depending on the circumstances, to tell someone about it.
Some of the other privileges recognized in Ohio, besides attorney-client are: Physician-patient, dentist-patient, clergyman-confessor, husband-wife, school guidance counselor-client(student), mediator in a domestic relations case-parent, and psychologist-client. As you can see, there are numerous privileges under Ohio law and figuring out whether they apply in a situation can be very complicated. Hiring an attorney who understands privilege can help a great deal in making sure evidence that should be presented, is, and information that should be kept private, remains private
If you are under investigation, or have been arrested by any law enforcement agency, feel free to contact one of our experienced Criminal Defense Attorneys, for a free initial consultation about your legal rights and possible defenses. In addition, if you have been wrongfully convicted, arrested, imprisoned, maliciously prosecuted, or have suffered some other wrong, feel free to contact one of our experienced Civil Attorneys, for a free initial consultation.