One of the most sacred bonds between an attorney and a client, particularly in the context of criminal defense or any attorney-client relationship, is the attorney-client privilege. This privilege essentially means that anything the client shares with the attorney must remain confidential, even after the client's death. So, they don't want people to be in a position where they're concerned about whether they tell their attorney something and the attorney can later disclose it to someone else. 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. The attorney-client privilege is in place to ensure that the client feels comfortable to tell the attorney all the information – not leave anything out of the information – otherwise, what could happen 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. Therefore, I need to be aware of the good, the bad, and the ugly aspects of the case, and the attorney-client privilege protects that information, providing a sense of security and comfort to the client.
Another issue I see with attorney-client privilege in Los Angeles criminal defense is that when I speak to someone inside the jail, all our calls are recorded. So, we're sitting there talking about the case. 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, there must be 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.
However, 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 the attorney/client privilege should protect. 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
There are some exceptions. If a client tells an attorney that they're going to 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. The attorney would need to comment on that.
Another issue that doesn't arise very often, but is an important consideration, is what if the client confesses to their lawyer that they committed the crime, and then the trial proceeds. Now, the client has an absolute right to testify in a trial if they want to. So, what if the client then comes forward and tries to testify, claiming 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, knows that the client is lying if they're saying they didn't commit the murder, for example, if it's a murder case. 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 at risk.
That's why, if any of these issues ever arise in a case I'm handling, I simply inform the client of the situation. Here are the rules, client. Here's how we'll handle the case to avoid any potential 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. As your attorney, I am committed to upholding the attorney-client privilege, respecting your rights, and ensuring your protection. You have duties and obligations as an attorney, and you want to avoid being 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 that there is an attorney-client relationship. The attorney should keep the information private from the client. That should all be kept confidential, and again, attorney-client privilege in Los Angeles County remains in effect even if the client passes away. The attorney should not disclose any information that is protected by the attorney-client privilege.
