Personal Injury Law: A Primer on Attorney-Client Privilege

Personal injury lawsuits can result in a substantial payoff, but they often take up a substantial amount of your time and energy – even when you have a qualified and dedicated attorney by your side and working on your behalf. That’s why it’s imperative to choose the best possible lawyer before anything else happens.

Another vital aspect of working with an attorney in a personal injury case, also known as a negligent tort, is the attorney-client privilege. Let’s take a closer look at how you can assess an attorney and how your professional relationship with them will play out over the duration of your case, from filing the first claim to receiving a settlement or judgment in your favor.

Top Tips for Finding a Personal Injury Attorney

While it’s impossible to predict how long a case of this type will take, most personal injury cases last for at least a year, but likely two or more years. For that reason, approach your search process much the same way as you would finding a romantic partner.

You need to find someone with whom it’s easy to communicate, both on a practical and interpersonal level. You’ll also need to be able to trust your attorney. For a case of this magnitude, making sure that your personalities click rather than clash is guaranteed to make the whole process much smoother.

Of course, you don’t need to share every opinion and viewpoint with your lawyer. This is, after all, a professional relationship. But do focus on whether or not the two of you can connect and communicate openly with one another.

What Is Attorney-Client Privilege?

While we’re on the topic of open and honest communication, let’s explore the concept of attorney-client privilege. This has two parts; first, attorney-client privilege ensures that the lawyer cannot, nor can be compelled to, divulge information that the client has provided in confidence. This applies to court cases, both the one in question and any that may arise in the future. The lawyer cannot be subpoenaed, expected to answer inquires in a court relating to the client’s information, or required to hand over confidential statements in connection with discovery.

Similarly, there’s a duty of confidentiality in place. That duty extends the nature of attorney-client privilege to information conversations or written statements.

“Lawyers can’t discuss anything about a client that is confidential, not even to their own spouse or in an email to a colleague,” says an attorney at Jacobson, Julius & Harshberger Law Firm. “That way, the client can have complete confidence in their lawyer.”

Expectations of Confidentiality

Although people use the phrase “attorney-client privilege,” it’s actually more accurate to term it “client privilege.” The client can waive their right to have the lawyer keep information secret, but it doesn’t’ work the other way around. At no time can the attorney waive their own requirement of confidentiality.

As in so many other facets of the law, attorney-client privilege and confidentiality are subject to the notion of “reasonable expectations.” In other words, if the client and attorney are discussing the case while alone in an office or via video conferencing, it is reasonable for the client to believe that anything shared within that conversation will be kept in confidence. The same cannot be said about a discussion that takes place in a crowded public space, or in some situations where a third party is present.

When Does Client Privilege Begin?

All personal injury lawyers offer a complimentary, no-obligation meeting to sit down with their potential client, discuss the facts of the case, and weigh its merits. If both parties are in agreement about pursuing legal recourse, only once they official enter a professional relationship and discuss a fee structure does the individual become a “client.” So are these sorts of preliminary meetings subject to attorney-client privilege and an expectation of confidentiality?

Generally speaking, they are. However, if you are in any doubt and don’t want to reveal certain information without being crystal clear as to the information being kept in confidence, ask the attorney right then and there. They’ll give you a straight answer so that you can proceed in good faith.

Exceptions to the Rule

There are some circumstances in which the attorney-client privilege does not apply. First, the lawyer must be acting in a professional capacity. There is no expectation of confidentiality if a person speaks about their legal case to a friend or acquaintance who happens to be a lawyer.

The crime-fraud exception is another situation that isn’t covered by privilege. If legal advice was allegedly used to commit a crime or to further illegal or fraudulent activity, the attorney can be compelled to testify or present evidence relating to the client.

Final Thoughts

Securing the services of an attorney in order to be made whole again after someone’s negligence caused a personal injury is a smart move. These cases are virtually impossible to prove on one’s own without legal assistance. For the very best shot at winning your case or being awarded damages, take your time as you evaluate potential attorneys and be sure you understand the notion of attorney-client privilege.