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What You Should Know

Attorney-Client Privilege Explained

The question of attorney-client privilege – what is, and what is not, protected by it – isn’t something that usually leads the evening news. Recently, however, it has been the talk of newsrooms and workplace watercoolers alike. Most of us (at least, most non-lawyers) have had a perception that the attorney-client privilege is one-size-fits-all; everything you say to your attorney is a secret. But, while that is almost always true, there are exceptions.

Each state has different rules governing when attorney-client privilege does or does not apply, but in Florida the test used by Florida Courts says attorney-client privilege exists where:

(1) Legal advice of any kind is sought

(2) From a professional legal advisor in his capacity as such,

(3) [Where] the communications relating to that purpose,

(4) [Are] made in confidence

(5) By the client,

(6) [And] are at his instance permanently protected

(7) From disclosure by himself or by the legal advisor,

(8) Except [when] the protection [is] waived.

All eight of those factors must exist when attempting to protect communications via attorney-client privilege in Florida.

But what does that really mean to you and me? How does that work in the real world, with real people and real situations?

  • If you are seeking legal representation/legal advice but don’t end up hiring that attorney, all your communications relating to that solicitation are still protected.
  • Conversations you have with the staff working directly for your attorney regarding legal advice in your representation can also be protected.
  • You can waive attorney-client privilege by sharing the information you gave to your attorney with a third party, like a friend or family member. Once privilege, in regards to that shared information, is waived you cannot reassert it.
  • How you found your attorney is often not protected under attorney-client privilege.
  • Attorney-client privilege must be asserted in relation to legal advice. If you are calling your attorney for business advice and not legal advice, that communication is not protected.
  • Your identity as a client of an attorney isn’t necessarily protected under attorney-client privilege.
  • The Crime-Fraud Exception that says when a client seeks or obtains a lawyer to aid in the commission of a crime or in the planning of future criminal activity, privilege does not exist.