Maintaining Confidentiality

Your lawyer is required to keep your secrets, a legal doctrine referred to as “attorney/client privilege.” 1  This means that you can speak freely, without worrying about your lawyer being called as a witness against you.2  In addition, everyone who works with your lawyer is bound by the attorney/client privilege, including: other lawyers who are employed by the same office, investigators, interpreters, paralegals, and clerical staff.  They’re not allowed to share information about you, nor can they be subpoenaed.  Also, a lawyer has to protect your confidentiality even if you don’t hire him.  You might speak with one attorney, talking about the details of your case, and then decide to hire a different lawyer.  The first one has to keep your secrets, even though you’re not working with him.

Unfortunately, it’s easy to destroy attorney/client privilege if you’re not extremely careful.  Whatever you tell your lawyer is protected, but only if you don’t tell other people. That means you can’t share the details of your case with your family, friends, or bartender.  Nor can they sit in on meetings between you and your attorney.  Once the material is no longer private between you and your lawyer, it’s no longer privileged.  Anyone other than your lawyer and her staff can be subpoenaed—forced to testify against you or else be sent to jail for contempt.  So for their sake, as well as yours, you’ve got to restrict what you say.  Besides, word gets around and there may be someone out there who doesn’t like you—a friend of a friend of a friend—who’d be perfectly happy to testify for the prosecution. So don’t lose control of information that could conceivably hurt you in court.

Of course, you can tell other people when your hearings are, what you’re charged with, and that you’re not guilty. That’s a matter of public record. But once you’ve said that much, you have to stop.  An easy way to do this is to say:

I’m sorry, but my lawyer says I can’t talk about the case, not even with my family and closest friends.  But it means a lot to me to know that you’re on my side.  I hope you can come to court and show that there’re people who believe in me.

Now, it may happen that certain family members or friends might be good witnesses on your behalf.  To include them in the case, you should first discuss with your lawyer what these potential witnesses could testify about.  If your lawyer thinks they’ll be helpful, she or her staff will talk to them directly.  This conversation—between the witness and the lawyer—will then be protected (by the “attorney work product rule”).

Whenever you write notes or letters to your lawyer, at the top of the page put:

Confidential Attorney/Client Correspondence

If you’re writing from jail, put it on the outside of the envelope, too. And remember, jail phones are not private—the authorities can listen in—so what you say to your lawyer on a jail phone is not protected by the attorney/client privilege. If you’re in jail, wait until your lawyer visits you in person before disclosing any private information.

1.  Of course, there are exceptions. Your lawyer is required to act if he knows you're committing perjury (see How Much to Tell Your Lawyer).  Also, if you tell your lawyer—seriously—that you're planning to injure someone, the lawyer may be required to inform the police (so avoid stupid jokes). Finally, if your lawyer ends up in litigation with you, he's allowed to testify.  For example, if you sue your lawyer, or if your lawyer becomes your co-defendant in a criminal case, the lawyer is entitled to testify about things you've said or shown to him.

2.  There are a few other privileges, similar to the attorney/client privilege.  For example, the priest/penitent privilege prohibits religious professionals (priests, ministers, rabbis and imams) from testifying about matters you've confided to them.  And in most jurisdictions, the doctor/patient privilege prevents medical professionals (doctors and psychotherapists, as well as the nurses and other staff who work with them) from testifying about what you've said as a patient. However, there isn't a privilege that relates to journalists. A reporter or photographer can be subpoenaed, along with her notes, photos, tapes, film, etc.  Some states haev passed "shield laws," that allow professional journalists to withhold the identity of a source (though not the information provided by the source), but the trial judge may still choose to compel disclosure.

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©2007 Katya Komisaruk

Republished by permission from the Just Cause Law Collective

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