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This issue of attorney-client privilege is prevalent in the news these days, as federal agents have raided the offices and home of President Trump’s personal lawyer. Much of what was obtained from that search/raid, what can be used, and for what purpose, hinges on the issue of attorney-client privilege, confidentiality and criminal activity.

In the United States, attorney-client privilege or lawyer-client privilege is defined as “client’s right or privilege to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney.” The purpose behind the privilege is to encourage clients to make honest and full disclosures of facts and documentation to their attorneys, without fear that the information would be released or obtained by others.

One critical issue is that the attorney-client privilege is not absolute . . . there are exceptions. The attorney-client privilege extends to most communications, but, as previously described, a communication to an attorney is not privileged if it was made with the intention of committing or covering of a crime or fraud.

Attorney-client privilege is almost never applicable to the identity of an individual. Identity does not equate to a communication . . . generally? The privilege covers written communications as well, provided the correspondence was for the purpose of requesting or receiving legal advice, and intended to be confidential. E-mails can be tricky and dangerous, and may not be considered a privileged communication. Each situation is different.

Although the attorney-client privilege is one of the oldest and most respected privileges in the legal profession, the ever changing Supreme Court, and the “laws” of our country continue to interpret issues in new and different manners. We will continue to follow the ongoing evolution of the doctrine of attorney-client privilege.

There are many other idiosyncrasies to the issue of attorney-client privilege. If you are seeking legal advice from an attorney, and have the expectation of privileged and confidentiality, the attorneys at Heiting & Irwin are always available for such consultations.

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