One of the most sacred bonds between an attorney and a client when it comes to criminal defense or any attorney-client relation is the attorney/client privilege, which basically means that anything that the client tells the attorney has to remain confidential – even after the client's death. So, they don't want people being in a position where they're concerned if they tell their attorney something and the attorney can later tell somebody else about it. That's just not right and that's why the attorney/client privilege exists. This also applies to our attorney referral program.
It's a crucial privilege because in criminal defense when somebody comes in to meet with me, obviously I want them to be honest. My concern is that if they're not honest about what happened, then they're going to leave me at a disadvantage when I have to challenge some of the evidence, have to deal with the police and prosecutors in Los Angeles County. So, that attorney/client privilege is there for a number of different reasons. One of the most important one is so that the client feels comfortable to tell the attorney all the information – not leave anything out of the information – otherwise what could happen is down the road in a preliminary hearing, a trial or some sort of motion proceeding – I can be trying to do something and all of a sudden some evidence comes up that I didn't know about, or some information comes up that I didn't know about. So, I need to know the good, the bad, the ugly about the case and the attorney/client privilege protects that.
Another issue that I see when it comes to attorney/client privilege in Los Angeles criminal defense is that I'll go over and speak to somebody inside the jail and all those calls are recorded. So, we're sitting there talking about the case and what the client did and what the client didn't do, so, if they're able to monitor that and are able to use any of that against the client, then you wouldn't be able to have any conversations in jail with your client because you would be in a position where if something good came from the conversation for the prosecution or the police in their investigation, then you'd be in a position where they would use that information against the client. We can't have that. So, it's crucial there is an attorney/client privilege. I've never seen a case – and I've been doing this for twenty-five years – where an attorney and a client were talking inside the jails and that was tape recorded and they tried to use that against the client – I've never seen that attempt to do that.
Although I have heard of a case from a fellow criminal defense attorney where they were monitoring a conversation between the attorney and the client inside the lock-up in one of the courthouses while the attorney was talking to the client before the court. Obviously, to me, that's another thing that should be protected by the attorney/client privilege. They should not be able to use that evidence. A client should feel confident to talk to their attorney about anything related to their case.
Exceptions To The Attorney/Client Privilege In Los Angeles, California
There are some exceptions. If a client is telling an attorney that they're going to go commit a murder, then the attorney might have an obligation to tell the authorities about that. So, whenever there's a situation where somebody is going to commit a crime and danger is imminent, that could be an exception to the attorney/client privilege where the attorney would have to say something about that.
Another issue that doesn't come up very often but it's an important consideration and that is what if the client confesses to their lawyer that they committed the crime and then the trial occurs. Now, the client has an absolute right to testify in a trial if they want to. So, what if the client then comes and tries to testify and say that they did not commit the crime? That could be a problem for the attorney and the whole attorney/client privilege because now the attorney – knowing that the client committed the murder – they now know that the client is ling if they're saying they didn't commit the murder, for example, if it's a murder case, and now they're suborning perjury by taking the information from the client. So, that's where it can get dicey as a criminal defense attorney. That's where the attorney/client privilege would be in jeopardy.
That's why if any of these issues ever look like they may come up in a case that I'm handling, I just tell the client what the situation is. Here's what the rules are client. Here's how we're going to handle the case so we don't get ourselves in any issues. We don't have any problems. We're not in a situation where we feel like I'm going to say something that's going to hurt you. You have duties and obligations as an attorney and you never want to be in a position where you're telling anybody any information about your client in any circumstance. You can say you don't want to breach the attorney/client privilege because you don't want the client to get hurt, but it's not really the attorney's decision to decide if the information they might consider giving to somebody would hurt the client or not. The bottom line is, there's an attorney/client. The attorney should not be giving any of the information away that the client gives them. That should all be kept secret, and again, that attorney/client privilege in Los Angeles County lasts even if the client passes away. The attorney should not be giving any information out that's protected by the attorney/client privilege.