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“ Mastro Law is the greatest. They are thoughtful, savvy and always take good care of my clients. It is a pleasure to recommend them. I know you will be pleased.”
The attorney-client privilege is a rule that preserves the confidentiality of communications between lawyers and clients. Under that rule, attorneys may not divulge their clients’ secrets, nor may others force them to. The purpose of the privilege is to encourage clients to openly share information with their lawyers and to let lawyers provide effective representation.
In Contrast: The Duty of Confidentiality
The attorney-client privilege is, strictly speaking, a rule of evidence. It prevents lawyers from testifying about, and from being forced to testify about, their clients’ statements. Independent of that privilege, lawyers also owe their clients a duty of confidentiality. The duty of confidentiality prevents lawyers from even informally discussing information related to their clients’ cases with others. They must keep private almost all information related to representation of the client, even if that information didn’t come from the client.
The Expectation of Confidentiality
Lawyer-client communications are covered by the attorney-client privilege only if the circumstances lend themselves to confidentiality. For example, clients who speak to their lawyers about pending lawsuits in private, with no one else present, can reasonably expect secrecy. If someone were to surreptitiously record the conversation, that recording would probably be inadmissible in court.
But a client who speaks to a lawyer in public wouldn’t be able to prevent someone who overheard the conversation from testifying about it. Similarly, a client can forfeit the attorney-client privilege by repeating a conversation with an attorney to someone else, or by having a third person present during a conversation with the lawyer. No matter who hears or learns about a communication, however, the lawyer remains obligated not to repeat it. (See Does eavesdropping destroy the attorney-client privilege? and If I tell someone something I told my lawyer, is it still confidential?)
Actual Clients Only?
Preliminary communications between a potential client and a lawyer are typically subject to the attorney-client privilege. That means that lawyers can’t disclose what prospective clients reveal in confidence even if the lawyers never ends up representing them. (In re Auclair, 961 F.2d 65 (5th Cir. 1992).) To be sure, though, you should confirm with a prospective lawyer that the privilege applies before you reveal anything you want to keep secret.
Talk to a Lawyer
The attorney-client privilege differs somewhat from state to state, and between state and federal court. When speaking to an attorney about a legal matter, make sure to go over the scope of the attorney-client privilege and the duty of confidentiality. The lawyer should be able to advise you of the applicable law and address any pertinent areas not covered in this article.
Estate Lawyers Are Necessary Since State Laws Rule Estate Plans
State laws are very specific about what can and can’t be in a will, trust, or medical or financial power of attorney; who can and can’t serve as a personal representative, trustee, health care surrogate or attorney in fact; who can and can’t be a witness to a will, trust, or medical or financial power of attorney; and what formalities must be observed when signing a will, trust, or medical or financial power of attorney.
For example, in Florida, a personal representative must either be related to you by blood or marriage or, if not, then a resident of the state. Time and time again I see wills of Florida residents that designate a friend or attorney from out of state as the personal representative. These non-resident, non-relatives simply can’t serve, and in fact, won’t be allowed to serve, in Florida. Working with a qualified estate planning attorney will help you to avoid this kind of simple and yet costly mistake.
Without an Estate Lawyer, the Buyer Must Beware
The old Latin saying, “Caveat Emptor,” or “Buyer Beware,” certainly applies to estate planning. If you think that you’ll be saving a few dollars by using forms found on the internet or in a do-it-yourself book to prepare your estate planning documents, then your family will be in for a rude awakening when they learn that part or all of your will, trust, or medical or financial power of attorney isn’t legally valid or won’t work as you had anticipated.
General Liability and Litigation
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