“Do we have attorney-client privilege?” is a question that is asked of lawyers, routinely,
within the first 5 minutes of meeting a new, potential client. Honestly, it always gives me
a moment of pause. That is because, in my experience over the last twenty plus years,
this question is often paired with the individual’s incorrect belief that whatever they say
next obtains some mystical protection from disclosure regardless of its content. However,
that is an incorrect conclusion.
What is attorney-client privilege?
At common law, a lawyer does have an ethical obligation to protect and hold inviolate
client information that is confidential. The public policy impact of this is that the lawyer’s
obligation of client confidentiality promotes and encourages individuals to seek legal
assistance in navigating through the miasma of laws and/or regulatory requirements that
govern our rights and responsibilities as individuals. The Virginia State Bar advises that
“A fundamental principal of the client-lawyer relationship is that the lawyer maintain
confidentiality of information relating to the representation. The Client is thereby
encouraged to communicate fully and frankly with the lawyer even as to embarrassing or
legally damaging subject matter.” As such, the lawyer’s protection of client information is
sacrosanct, in general.
How far does this protection extend?
There are certain exceptions to the attorney-client privilege; however, there is one
particular exception that is exceedingly important for everyone to understand. The
Virginia State Bar Professional Guidelines Rule 1.6(c) provides crystal clear instruction
regarding a lawyer’s duty to promptly reveal confidential client information if a client
communicates to the lawyer that the client intends to commit a crime reasonably certain
to result in the death or substantial bodily harm of another person, or a substantial injury
to the financial interest or property of another person. When provided such information,
the attorney is required (where feasible) to advise the client of the potential legal
consequences of the intended actions and urge the client not to commit the crime. If the
client does not abandon their intentions/activity, the attorney must reveal the client’s
criminal intention.
Impact on Estates and Trusts
I take great pride in my work as an estate and trust attorney. I consider it an honor to be
given my clients’ trust and confidence during the planning, maintenance and
administration of their estate plans. In the course of my practice, I find that clients share
with me some of their most sensitive information; as I like to quip, “things they wouldn’t
tell their priest.” Often, my knowledge of the confidential inner workings of a client family
and/or business spans generations. It is critical that my clients trust me to this degree so
that I may best help them obtain their estate and trust planning objectives. However, Rule
1.6(c) remains a safeguard in our representation of estate and trust clients to ensure that
even in the sensitive work that we do, we may not be used by a client as an accessory to
a criminal act against another.
Conclusion
So, if you hear someone ask me, “do we have attorney-client privilege?”, you will not be
surprised to hear my lawyer answer that starts with “yes, but…”