Are Consultations With a Lawyer Confidential?
Even though (in most cases) an attorney-client relationship is required to support a malpractice claim, even a consultation can be enough to establish an attorney-client relationship for purposes of attorney-client privilege.
WHAT IS ATTORNEY-CLIENT PRIVILEGE?
Attorney-client privilege is one of the oldest confidentiality protections recognized in the United States. Although the name includes both the lawyer and the client, technically the privilege belongs to the client. Where the attorney-client privilege exists, it gives the client the right to refuse to disclose confidential communications between the client and his or her attorney(s). By extension, the client also can prevent anyone else–including the lawyer(s)–from disclosing those communications either.
WHO IS A CLIENT, FOR PURPOSES OF THE ATTORNEY-CLIENT PRIVILEGE?
For purposes of the attorney-client privilege, a client includes both persons with whom the lawyer has an official attorney-client relationship (for example, via a retainer agreement) and a person who consults with a lawyer for purposes of potentially retaining the lawyer to provide legal services or advice. (See: California Evidence Code § 951)
Therefore, persons who can claim the attorney-client privilege for purposes of protecting discussions and communications with lawyers include:
- Persons who have had a consultation with a lawyer (either in person or through a representative, like an agent), in order to decide whether or not to hire the lawyer to provide legal services or representation
- Persons who actually have retained a lawyer to provide services, or otherwise formed a formal attorney-client relationship with a lawyer
This is a marked contrast to malpractice claims, which usually require more than mere consultation for an attorney-client relationship to be recognized.
Please note, however, that attorney-client privilege does not apply to statements made or information provided to a lawyer after the lawyer declines to represent the potential client. This is because only statements made within the scope of professional services or employment are covered by the privilege. Once a lawyer (or potential client) decides not to enter into an attorney-client relationship, their conversations, emails, and other communications are no longer subject to the privilege. As with almost everything in the law, exceptions may exist–but this is the general rule.
If you believe that statements you made to a lawyer should be privileged, but were not treated properly–by the lawyer, or by someone else–consult an attorney promptly for an evaluation of your legal rights.
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Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR OR ROSS LAW AND ANY PERSON. Your legal rights and experiences may vary. Never use an online article (including this one) to evaluate your legal rights or claims. Consult an experienced attorney promptly to obtain a personalized evaluation of your claims, potential damages, and the various legal rights and options available to you.
You may lose or compromise your rights if you delay in consulting legal counsel. Most legal claims (and defenses), as well as legal and court procedures, are complicated and fact-dependent. If you believe you have a claim against someone who injured you, a lawyer who represented you in a previous lawsuit, or any other legal claim, consult an experienced lawyer immediately for an evaluation of your individual rights and claims.
