Pennsylvania law considers communications between attorneys and their clients as privileged communications. This privilege is intended to preserve the trust between an attorney and client, as that level of trust (i.e., understanding that honest discussions with your attorney will not be used against you in court) is critical to effective legal representation. However, there are five issues of which you need to be aware that may negate their confidentiality.
The attorney-client privilege can be explicitly waived by the client, but not by the attorney. It is only with the client’s consent that a confidential communication can be disclosed (aside from other exceptions).
If you do consent to confidential communications being disclosed, you cannot “close Pandora’s Box” by taking back your waiver. It’s important to note, however, that your waiver would likely not be absolute — most waivers are narrowly-construed to limit how much information is actually revealed. Defendants may attempt to take advantage by trying to reach for more than the waiver allows, so one must be careful to craft their waiver to prevent overreach.
Importantly, only private communications between an attorney and their client are protected under attorney-client confidentiality. Communications that have no reasonable expectation of privacy are not protected.
How does this work?
Suppose that you are standing on the steps outside of the courthouse and you are having a discussion with your attorney about your case. You loudly disclose valuable information to your attorney, and the opposing side (defendant and their counsel) are standing nearby and can easily overhear what you are saying. If the defendant was to attempt to introduce that evidence into trial, the law would likely allow them to do so — you did not have a reasonable expectation of privacy on the steps outside of the courthouse.
It’s quite normal for personal injury plaintiffs to meet with several different attorneys before deciding to go with one. Fortunately, Pennsylvania law protects those communications (made for the purpose of securing legal representation) under attorney-client confidentiality, even if the plaintiff does not move forward with that specific attorney.
Communications between you and an attorney will only be privileged if you have engaged them in a professional capacity.
Suppose, for example, that your friend is an estate law attorney. You briefly and casually discuss the problems in your personal injury case with them in your capacity as a “friend,” and not for the purpose of securing representation. Under those circumstances, the attorney-client privilege would not apply.
One major exception to the attorney-client privilege is for the prevention of criminal acts, such as fraud. Though confessions of past, unrelated criminal conduct are protected under attorney-client confidentiality, if you are attempting to use your attorney to commit fraud (i.e., to bring an illegitimate personal injury claim against the defendant) then the privilege will not necessarily apply.
Drake, Hileman and Davis is a full service law firm with an emphasis on personal injury law. Since 1985, we have served clients throughout Pennsylvania and New Jersey- from Philadelphia north to th...
