After being in a serious accident, you may be unsure where to turn for help. You might be holding on to sensitive information related to the incident yet afraid the information could end up in the wrong hands or be used against you.
Maintaining confidentiality is one of a personal injury lawyer’s most important responsibilities. Attorney-client privilege ensures that clients can communicate freely and honestly with their attorneys.
In this article, we will break down attorney-client privilege. We will also explain how it might impact your personal injury case.
Attorney-Client Privilege Explained
According to the American Bar Association (ABA), attorney-client privilege is a legal rule that protects the confidentiality of communications between attorneys and their clients.
When individuals have a legal problem they need help with, which is usually of a confidential nature, they seek the assistance of a lawyer. Victims of accidents or injuries want to be sure that the lawyers they are confiding in will not speak to others about their legal issues.
Attorney-client privilege ensures that any information shared in confidence cannot be disclosed to third parties without the client’s consent. This privilege exists to encourage open communication. This, in turn, allows attorneys to provide accurate and effective legal advice based on all relevant facts.
When Does Attorney-Client Privilege Apply?
Certain requirements have to be met for attorney-client privilege to apply. Here’s a breakdown of those requirements.
You have a formal attorney-client relationship
A relationship between the attorney and the client needs to be established for attorney-client privilege to apply. This relationship is usually formalized through a written agreement. In the agreement, the lawyer agrees to provide legal representation.
Even initial consultations, if intended to seek legal advice, are often protected under this privilege.
Communication was made in confidence
For the privilege to apply, the communication must be made in private. The fact that the client had an appointment at the law firm may not be privileged. Third parties should not be present during the discussion for communications to be considered confidential. Third parties could include friends or family members.
Communications made in a public place where others are likely to hear it might not be considered privileged. Additionally, if the information could have been discovered some other way, such as if it were posted on social media, then the communication was not made in confidence.
Communication is for legal advice
Individuals go to school and study for many years in order to pass the bar exam and become attorneys. As attorneys, they are entrusted with sensitive information. They are expected to use their considerable knowledge to benefit others.
Generally, communications with your lawyer are protected under attorney-client privilege when:
- Obtaining an opinion on the law
- Requesting help with a legal proceeding
- Retaining legal services
Examples of Attorney-Client Privilege in Personal Injury Cases
The following are a few examples of when attorney-client privilege would apply to personal injury cases:
- Discussions about case strategy: Did you and your lawyer discuss how to approach negotiations with an insurance company? If so, those conversations are protected by attorney-client privilege.
- Health and medical information: Your attorney needs detailed information about your medical history and treatment to build your case. Any communication about these topics is protected.
- Accident details: Sharing photos of the accident scene falls under privilege, and recounting events that led to the injury or discussing witness testimony also does.
What Is Not Protected Under Attorney-Client Privilege?
Please keep in mind that not everything is considered privileged communication; there are a few exceptions to be aware of:
- Crime or fraud: Telling your attorney about your plan to conceal or commit a crime or fraud is not protected. Let’s say that a client is trying to facilitate fraudulent insurance claims. These communications may be subject to disclosure.
- Public statements: Information that a client publicly discloses, whether intentionally or unintentionally, is not protected.
- Joint representation: In some situations, two or more clients are represented by the same attorney. Communications related to the joint representation may not be privileged in disputes between clients.
- Voluntary waiver: The privilege may no longer apply if the client voluntarily shares privileged information with others.
- Court orders: In rare cases, the court may compel the disclosure of certain communications. This typically only happens in complex legal cases.
How Attorney-Client Privilege Benefits Your Personal Injury Case
The main purpose of attorney-client privilege is to encourage clients to speak freely with their attorneys. An attorney-client discussion should be held without fear that the client’s words will be disclosed to opposing parties or used against him or her in court.
Consider some benefits of attorney-client privilege in personal injury cases.
Promotes honest communication
The smallest details in a personal injury case are important and can mean the difference between your claim being successful and having to pay for damages out-of-pocket. For instance, your lawyer needs to know about pre-existing injuries and the full extent of your pain and suffering. Disclose any other potentially harmful evidence the opposing party might uncover.
Preserves confidential medical and financial information
You may need to share sensitive medical and financial records with your personal injury lawyer. Attorney-client privilege safeguards this information. It ensures that only relevant and necessary details are disclosed to opposing parties or the court.
Protects your legal strategy
Confidential communication enables your personal injury lawyer to develop a legal strategy without interference from opposing parties.
For example, conversations about witness testimonies, settlement negotiations, or trial tactics remain private. Without this protection, the opposing party could exploit your legal approach. This could weaken your case.
What You Can Do to Protect Your Attorney-Client Privilege
In personal injury cases, disclosing private information to your lawyer allows him or her to build a strong case. You may need to discuss sensitive topics such as your medical history or the details of your accident. Protecting these communications ensures that your personal injury lawyer can represent you effectively without interference from the opposing party.
The following are some steps that you can take to protect your attorney-client privilege.
Communicate only with your attorney
You must communicate directly with your attorney or legal team member to maintain privilege. Sharing case details with third parties, including friends, family members, or workmates, can waive the privilege.
Even casual conversations can create vulnerabilities that opposing counsel could exploit.
Mark confidential communications clearly
If you share documents or messages with your personal injury lawyer, clearly label them as “Confidential.” This reinforces your intent to keep the information privileged. It also makes it easier to identify protected materials in cases of disputes.
Don’t hide details
Provide your personal injury lawyer with accurate and complete information. While it may be tempting to hold back details you consider irrelevant or embarrassing, doing so could compromise your case. Honest communication allows your attorney to protect privileged information well.
Avoid public or insecure communication channels
In order for your communications to remain secure, avoid:
- Public phone calls: Speak with your attorney in private to ensure that no one overhears your conversations.
- Social media: Never post about your case on social media. Defendants may use public posts to challenge attorney-client privilege or undermine your claims.
- Unsecured apps and shared email accounts: Use secure and private communication methods when contacting your lawyer. Avoid discussing case details over unsecured platforms or shared work email accounts.
Limit access to case information
Be cautious about who has access to your case files or correspondence with your attorney. Keep physical and digital copies of sensitive materials in secure locations. Do not leave them where others can view or take them.
The Role of Your Attorney in Protecting Privilege
Your personal injury attorney plays an essential role in safeguarding privilege. He or she will work hard to preserve the integrity of your case.
Below are some of the key strategies employed by attorneys to uphold confidentiality:
- Educating clients about attorney-client privilege: Attorneys should educate clients by defining what qualifies as privileged communication. Attorneys should also advise clients to avoid sharing sensitive information with third parties since this can waive the privilege.
- Create a safe environment for communication: Attorneys ensure that all communications occur in secure settings. In-person meetings should be conducted in private offices to maintain confidentiality. Email communications and video conferencing tools must have strong security.
- Maintaining confidentiality within the firm: Lawyers limit case file access to only those who are working on the matter. Lawyers also store documents in secure, password-protected systems.
- Being vigilant during court proceedings: Cautious attorneys reject improper discovery requests that seek privileged communications. Attorneys also ensure all disclosures comply with the client’s consent and do not waive privilege unnecessarily.
Contact Our Personal Injury Law Firm Today
Have you been injured and are considering pursuing a personal injury claim? If so, our law firm is here to help.
We understand the important role attorney-client privilege plays in protecting our clients. Our personal injury attorneys will prioritize your privacy. We will guide you through each step of the claims process, ensuring your rights remain protected.
Do you have questions about attorney-client privilege or need assistance after an accident? Contact Hauptman, O’Brien, P.C. today. We serve Nebraska clients through our offices in Omaha, South Omaha, and Bellevue, as well as Iowa clients via our office in Council Bluffs. Call our law firm at (402) 241-5020 to schedule a free consultation. You can also complete our contact form, and someone will get in touch with you shortly.
Timothy R. O’Brien and the firm are professional, experienced, and responsive. Tim showed genuine empathy and persistence to get me a fair settlement which was far above what I had been offered without legal counsel.