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Understanding attorney-client privilege

by | Apr 20, 2019 | Legal Malpractice |

Most people in Florida believe that anything they say to their attorney is privileged; that is, that the attorney cannot reveal it to anyone else. While this holds true in general, it represents a somewhat oversimplification of attorney-client privilege.

Per Chapter 90 of the 2018 Florida Statutes, a communication between a Florida attorney and his or her client is confidential only when the client intends that the attorney not divulge it to anyone other than those to whom (s)he must reasonably divulge it for transmission purposes and/or those to whom (s)she needs to divulge it to further his or her rendition of legal services to the client.

Who can claim privilege

In addition to the client, only the following people can claim privilege:

  • The client’s guardian or conservator
  • The client’s personal representative after the client dies
  • If a business client, an assignee, successor, dissolution trustee, or some other similar representative of the business
  • The attorney himself or herself, but only on behalf of his or her client

Privilege extent

Privilege applies only to the attorney, not to the client. A client always has the right to divulge the confidential information to anyone (s)he sees fit. Even the attorney can divulge the confidential information if the client gives his or her informed consent to such dissemination. In addition, the attorney can, and in fact must, divulge the information if it pertains to the commission or planned commission of a crime.

Business clients

While the American Bar Association calls attorney-client privilege the “backbone of the legal profession,” it nevertheless advises that not all information a client gives his or her attorney is privileged. This especially applies to people who seek out an attorney for both legal and business advice.

In these situations, only the information and documents that the client gives the attorney for the purpose of obtaining legal advice are privileged. Furthermore, should the client deliberately or inadvertently disclose the same information to someone else, such as a business partner, employee, etc., (s)he thereby waives the privilege. Business clients likewise should know that when they attach documents to an email they send to both the attorney and business associates, neither the contents of the email nor the documents fall within the attorney-client privilege.