Understanding Attorney-Client Privilege

In Child Custody, Separation & Divorce by Sarah Hink

The attorney client relationship is an incredibly important one. In order to navigate the legal system, an attorney is an absolute necessity in most proceedings. However, for that representation to be effective, a client and attorney must be able to freely speak about a case. This allows an attorney to provide comprehensive and thorough legal advice. Significantly, an attorney must have all the information necessary to provide effective legal representation.

The Attorney Client Privilege

The attorney-client privilege is one of the hallmarks of the American legal system. It is also one of the primary mechanisms that allows for free communication between a client and an attorney.

In North Carolina, Rule of Professional Conduct 1.6(a) states that:

A lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

In essence, the privilege means that an attorney is prohibited from revealing information that a client confides in that attorney. Courts take the privilege seriously and will strictly scrutinize any attempt of opposing attorneys to access privileged information. In addition, attorneys understand their duty protect their clients’ privileged information and will fight to protect their clients.

How Does A Court Determine Whether the Privilege Applies?

In 2003, the North Carolina Supreme Court articulated a five-part test to determine whether a communication was subject to the privilege. These factors include:

  • Whether there was an attorney-client relationship that existed at the time of the communication;
  • Whether the communication in question was made in confidence;
  • Whether the communication regards a matter about which the attorney was being professionally consulted;
  • Whether the communication was in the course of communication relating to a proper purpose; and
  • Whether the client waived the privilege.

This test exists because of the potential for people to misuse the privilege by claiming it to withhold evidence that a court should hear. Further, there are numerous circumstances where an attorney is permitted to reveal otherwise privileged information. This includes an attorney preventing the commission of a crime, the attorney preventing the “reasonably certain death or bodily harm” of a person, or if the attorney reasonably believes that his or her legal services were used to help commit a criminal or fraudulent act. In addition, the privilege belongs to the client, who has the ability to (intentionally or unintentionally) waive the privilege.

Contact New Direction Family Law

At New Direction Family Law, we value and respect our clients. We take the attorney-client relationship very seriously and strive to provide relevant, accurate, and thorough legal counsel to each and every client. If you are looking for a compassionate, attentive family law attorney, contact us. We serve Wake, Johnston, Durham and surrounding counties. Call New Direction Family Law today at (919) 719-3470 to schedule a consultation or visit us at our website.

Sarah J. Hink
New Direction Family Law

New Direction Family Law
(919) 719-3470