A Guide to Attorney Client Privilege in North Carolina
The relationship between an attorney and the client is well-defined in the rule of law. Everyone has heard of the rule “attorney-client privilege,” but what is entailed in that rule? It is a foundational component of the American legal system that guarantees confidentiality in order to allow for better legal advice. Attorney-client privilege also promotes compliance with the law by encouraging communication.
At Sandman, Finn & Fitzhugh Attorneys at Law, your Raleigh criminal lawyer, we strictly abide by the rules that define the attorney-client relationship so that our legal representation is thorough. This article provides information about the privilege we commit to with our clients in an effort to give the very best counsel possible.
What is Attorney Client Privilege?
The attorney-client privilege in North Carolina, and throughout the United States, pertains to communication that is made in confidence between a client and his/her legal representative in order to provide legal counsel or advice. This covers all types of communications and exchanges between a client and attorney including oral communications and documentary communications such as letters, emails, and text messages. The following components are central to the communications between attorney and client.
Communication Must Be Confidential
The communication must be confidential, meaning it is limited to the client and lawyer. For instance, if someone outside the attorney-client relationship receives the communication (like a friend copied on an email to the attorney), the privilege is lost. Regardless of whether the communication was made in confidence, it loses the privilege. This is known as “waiving” the privilege.
Made by a Client
As long as the client believes he/she is speaking with the lawyer for the purposes of retaining legal advice in advancing his own interests, a formal retainer agreement is not necessary.
Must be Made to a Lawyer
The communications must be made to a lawyer. Additionally, the privilege covers a client’s communications with staff who assist the lawyer in the representation, such as a paralegal or an investigator.
Must be Made for the Purpose of Seeking Counsel – Legal Advice
When a client provides information to an attorney for the purpose of seeking legal advice, the privilege applies. When a lawyer is providing business advice in a corporate setting, the communications are not privileged.
What is the Purpose of Attorney-Client Privilege?
The purpose of the attorney-client privilege is to promote open and honest communication between clients and their lawyers. In order to represent a client effectively, his/her legal representation must have access to all relevant information. The privilege creates an environment whereby a client feels safer and is more likely to provide a lawyer with all information pertinent to the case, including that which may be embarrassing or difficult to discuss.
The privilege also ensures that lawyers can provide honest and forthright legal advice to their clients. For example, an attorney may be more thoughtful and watchful when discussing whether the client’s conduct adds up to fraud if that conversation could be disclosed to prosecutors or a potential adversary in litigation.
Rule 1.6 in North Carolina
Rule 1.6 dictates attorney-client privilege and confidentiality. North Carolina’s Rule 1.6 follows the American Bar Association’s model for the most part, however, there are some differences. North Carolina Rule 1.6a 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 to carry out the representation or the disclosure is permitted by paragraph (b).
It is important to note that Rule 1.6 applies to information the lawyer receives during active representation of a client. It does not apply to information received from prospective or former clients.
“Informed Consent” Exception
“Informed consent” refers to the agreement between attorney and client when the client authorizes the disclosure of information shared with the lawyer after being advised as to the consequences of disclosure.
Other Exceptions to Rule 1.6
There are other exceptions to the attorney-client privilege in which the rule will not apply and communications can be exposed as set forth in Rule 1.6(b).
When an attorney has knowledge of a potential future crime, he/she can disclose the crime to the proper authorities in an effort to prevent the act. In preventing death or bodily harm, the attorney can inform the police and disclose the crime. And, in order to prevent, mitigate, or rectify the consequences of a client’s criminal or fraudulent act in the engagement with legal representation, the attorney can disclose the situation.
Issues with the Lawyer
If a client has concerns that his/her lawyer has not been in compliance with the model rules and speaks with another lawyer about those concerns, then the attorney-client privilege is lost. If a client brings suit against his/her lawyer for malpractice, then the information disclosed during the representation is core to that suit and the attorney-client privilege is destroyed.
When the court orders that information must be turned over, the attorney-client privilege is lost. Additionally, when an assistance program that is approved by the North Carolina State Bar or North Carolina Supreme Court requires information from the attorney, the attorney-client privilege is lost.
Contact Our Raleigh Criminal Attorneys Today
If you have been charged with a crime such as DWI, drug offense, gun charge, embezzlement, assault, larceny, or a federal crime, call our criminal defense team today. You can be certain that our attorneys follow attorney-client privilege, as well as all other mandates, to ensure you get representation that is thorough and without flaw. Contact Sandman, Finn & Fitzhugh, Attorneys at Law, and schedule a consultation with our Raleigh criminal attorneys today. Fill out the form to the right or call us at (919) 845-6688.