Attorney-client privilege is a cornerstone of the legal profession. It protects the confidentiality of communications between attorneys and their clients. Violating privilege can leave an attorney facing an ethics committee and fighting for their license.
However, there are a few instances where attorneys have justification for breaking privilege.
Crime or fraud exception
One well-known defense for violating privilege is the crime or fraud exception. This allows an attorney to break privilege and disclose information if a client seeks legal advice with a clear intent of committing a further criminal act or fraud. Attorneys have an obligation to uphold the law and prevent criminal actions, and that obligation supersedes privilege.
Future harm prevention
When an attorney’s client reveals plans to inflict harm on someone else or themselves, attorneys have a duty to report those threats. Attorneys must deem that the threat poses a credible and real danger to justify violating privilege.
Sometimes a client waives their privilege to address specific situations. When a firm represents both clients in an opposing situation, clients might waive privilege. If a client claims ineffective counsel, they often waive privilege to demonstrate that their attorney provided inadequate representation. A client should only waive privilege of their own accord and with a thorough understanding of the implications and any potential consequences.
In 2022, the California State Bar filed disciplinary actions against 156 licensed attorneys and filed disbarment or suspension recommendations for nearly 200. Facing disciplinary actions for violating privilege can cost you significantly, so consider these avenues for defending your actions and fighting for your license.