Consequences Of Breaching Attorney-Client Privilege Law

Attorney-client privilege is a cornerstone of the legal system, protecting oral and written communications between a client and their attorney. This privilege is so important that it cannot be used as evidence against the client, even if the lawyer discloses the information. However, this privilege is not absolute and has limits and exceptions. If an attorney breaches the attorney-client privilege, they can face serious consequences, including suspension or disbarment, and criminal charges in some cases. The consequences depend on the nature of the breach and the state in which it occurred. In some situations, an attorney is allowed or even required to break confidentiality without facing discipline, such as when they believe their client or others may be in danger.

Lawyer punishment

Attorney-client privilege is a fundamental principle of the legal profession, and lawyers who breach this privilege face serious consequences. The attorney-client privilege is a rule that protects the confidentiality of communications between lawyers and clients. It encourages clients to be honest and open with their lawyers, allowing for effective legal representation. While most communications are protected, there are exceptions, such as when a client intends to commit a future crime or fraud.

If a lawyer breaks the attorney-client privilege, they can face a range of punishments, from professional discipline to criminal charges. The specific consequences depend on the jurisdiction and the nature of the breach. In the United States, the American Bar Association's (ABA) Model Rule on client confidentiality outlines when a communication is privileged and guides disciplinary action.

One of the most serious consequences a lawyer can face for breaking the attorney-client privilege is disbarment, which means they can no longer practice law. This penalty is reserved for serious breaches of ethics and can be a career-ending punishment. Disciplinary sanctions can also be imposed, ranging from a reprimand to suspension.

In addition to professional consequences, a lawyer who breaks the attorney-client privilege may also face criminal charges in certain situations. For example, if a lawyer discloses confidential information that leads to harm or financial loss, they could be criminally liable.

It is important to note that the attorney-client privilege is not absolute, and there are situations where a lawyer is ethically permitted or legally required to break confidentiality. For instance, if a lawyer believes that their client or someone else is in danger, they may disclose information to prevent imminent harm. In such cases, the lawyer would not face punishment for breaking the privilege.

Overall, the consequences of a lawyer breaking the attorney-client privilege can be severe, and lawyers have a strong ethical and legal duty to protect their client's confidential information.

Evidence inadmissible

Attorney-client privilege is a cornerstone of the legal system, protecting communications between a client and their lawyer. This privilege is so important that it cannot be used as evidence in court, even if the lawyer discloses the information. This means that if attorney-client privilege is broken, any evidence obtained is likely to be inadmissible in court.

The attorney-client privilege is a rule of evidence, and it applies to both oral and written communications, as well as non-verbal cues such as a nod of the head. It is designed to encourage clients to speak frankly with their lawyers without fear of self-incrimination. This privilege belongs to the client, not the attorney, and it is the client's intent that determines whether the crime-fraud exception applies.

The crime-fraud exception comes into play when a client intends to commit or is in the process of committing a crime or fraud and communicates this to their lawyer. In such cases, the lawyer has the right to disclose this information to the authorities. However, the prosecution must subpoena the lawyer to force them to disclose this information.

It is important to note that the attorney-client privilege is not absolute and has certain limitations. For example, it does not apply if a third party is present during the communication without the client's knowledge or if the client discloses privileged information to a third party. Additionally, the privilege may be lost if privileged information is produced during the pretrial discovery phase and the party does not object in a timely manner.

In the event that an attorney breaks the attorney-client privilege, they can face serious consequences, including disciplinary action, suspension, or even disbarment. However, it is important to note that the specific consequences may vary depending on the state and the nature of the breach.

Confidentiality duty

The duty of confidentiality is a broader concept than attorney-client privilege. While attorney-client privilege is a rule of evidence that applies in a court or litigation setting, the duty of confidentiality applies to all information the attorney has about the client, not just communications between the attorney and client. It also applies in all scenarios, not just in court or litigation.

The duty of confidentiality is included in the California Rules of Professional Conduct and the Model Rules of Professional Conduct. A lawyer may not reveal confidential information relating to the representation of a client unless the client gives informed consent, unless the disclosure is implicitly authorized to carry out the representation, or unless an exception to the duty of confidentiality applies.

The duty of confidentiality typically survives the termination of the attorney-client relationship and the death of the client. However, there are exceptions. For example, lawyers for deceased clients may divulge information that would otherwise be protected by attorney-client privilege in the case of a probate dispute.

Lawyers who breach the duty of confidentiality may face serious professional penalties, including disbarment.

Exceptions

While the attorney-client privilege is a fundamental right that protects communications between a client and their attorney, there are certain exceptions where this privilege does not apply. Here are some of the key exceptions:

• Crime-Fraud Exception: This is one of the most commonly recognised exceptions. The attorney-client privilege does not apply if a client seeks advice from their attorney to aid in the commission of a future crime or fraud. In such cases, the attorney has the right to disclose this information to the authorities to prevent imminent harm or death.
• Death of a Client: Upon the death of a client, the attorney-client privilege may be breached if litigation ensues between the decedent's heirs, legatees, or other parties claiming under the deceased client. This exception is based on the rationale that it furthers the client's intent.
• Fiduciary Duty: In the case of a corporation, the right of the corporation to assert attorney-client privilege is not absolute. Shareholders may pierce the corporation's attorney-client privilege in certain situations.
• Breach of Duty: There is no attorney-client privilege if there is a breach of duty by either the attorney or the client arising from their professional relationship. For example, if an attorney sues a client for unpaid legal fees, they can reveal information necessary to establish their claim.
• Intention or Competence of a Client: If a communication is relevant to an issue concerning the intention or competence of a client executing an attested document, and the attorney is an attesting witness, the privilege may not apply. For instance, an estate planning lawyer who is an attesting witness to a will may testify about the circumstances surrounding its execution, including the client's competence.
• Common Interest Exception: This exception applies when two or more clients are represented by the same attorney in a single legal matter. In subsequent litigation between these clients, neither can assert attorney-client privilege if the litigation pertains to the subject matter of the previous joint representation.
• Presence of Third Parties: The attorney-client privilege may be waived if confidential communications are made or disclosed in the presence of individuals who are neither the attorney nor the client. However, only a third-party "eavesdropper" can repeat the information, and the attorney is still bound by the privilege.
• Waiver by the Client: The client holds the ultimate authority to assert or waive the attorney-client privilege. This can occur through public disclosure of the communication or by providing information to third parties.
• Disclosure for Probate: In the case of probating a last will and testament, previously confidential communications may be disclosed to prove that the will represented the intent of the deceased client.
• Disclosure for Payment: Lawyers may disclose confidential information relating to the retainer when seeking payment for their services. This is justified to ensure access to justice and prevent clients from avoiding payment.
• Self-Defence: If a client initiates legal proceedings against their lawyer, they effectively waive their right to confidentiality. This allows the lawyer to defend themselves by revealing relevant information.

Discipline

If an attorney breaks the attorney-client privilege, they can face serious consequences, including disciplinary action and penalties. The specific discipline imposed may vary depending on the nature and severity of the breach, ranging from a reprimand to more severe sanctions. Below are some of the possible disciplinary measures that can be imposed on attorneys who violate the attorney-client privilege:

• Disbarment: Disbarment is one of the most serious penalties that can be imposed on an attorney. It involves revoking their license to practice law, effectively ending their legal career. This penalty is often reserved for egregious or repeated violations of the attorney-client privilege.
• Suspension: Suspension involves temporarily revoking an attorney's license to practice law for a specified period. During the suspension, the attorney is prohibited from providing legal services or engaging in the practice of law.
• Reprimand: A reprimand, also known as a censure, is a formal statement of disapproval issued by the state bar association or regulatory body. It serves as a warning to the attorney and may be accompanied by a fine or other sanctions.
• Fines: Monetary fines may be imposed as a disciplinary measure for violating the attorney-client privilege. The amount of the fine can vary depending on the jurisdiction and the severity of the breach.
• Ethical Violations: Breaking the attorney-client privilege constitutes an ethical violation. The attorney may face disciplinary action from their state bar association or legal regulatory body, which could result in additional sanctions or requirements to fulfil, such as undergoing ethics training or making restitution.
• Criminal Charges: In some cases, an attorney who discloses confidential information may face criminal charges, particularly if their actions result in significant harm or endangerment to others.

The disciplinary process for attorney misconduct typically involves an investigation by the state bar association or a legal regulatory body. This process may include reviewing complaints, conducting interviews, and examining relevant evidence. If misconduct is found, the disciplinary authority will determine the appropriate sanctions to be imposed on the attorney.

It is important to note that the specific disciplinary rules and procedures may vary across different jurisdictions, and each state may have its own bar association or regulatory body responsible for overseeing attorney conduct and imposing discipline.

Frequently asked questions