History of Attorney-Client Privilege
The attorney-client privilege dates back to the Elizabethan era in England, possibly, even earlier. This long-accepted feature may be the English and American oldest disclosure protection principle. Although this confidentiality feature does not appear in state code, the privilege is recognized in courts throughout Virginia.
State-to-state variations in attorney-client privilege principles tend to be minimal. Legal counsel need not learn critical nuances in different states. Neither attorney nor client need to share information or show evidence of sensitive communications between the two.
The federal court system also recognizes similar attorney-client privilege provisions, principles and rules of order. Much like some states, these components are the result of common, not statutory, law.
Attorney-Client Privilege and Ethical Duty of Confidentiality Differences
While these are similar principles, they have different origins and purposes. Most attorney-client provisions and conventions come from long-established common law. The ethical duty of confidentiality appears in a state’s ethics code.
Although attorney-client privilege protects some, but not all, communications from third-party disclosure, the ethical duty applies in every circumstance. ABA Model Rule 1.6(a) requires that attorneys must keep “information relating to the representation of a client” confidential.
Virginia, however, uses the old ABA Model Code of Professional Responsibility, which requires protection of the “confidences” and “secrets” of the client. The former ABA code defines “confidences” as the “information protected by the attorney-client privilege . . .” See Virginia Rule 1.6(a) to see the difference in ethical duty requirements.
Attorney-Client Privilege Purpose
Lawyers must be allowed to discuss confidential (or “secret”) issues with clients without fear of being forced to reveal sensitive information that could affect court decisions. Clients must be able to trust in the confidentiality of their statements to their legal counsel to encourage disclosure of all facts.
Types of Protected Communications
Technically not all communications enjoy protection under Virginia attorney-client privilege. Six components determine whether the privilege applies. All six of features must be present to confirm that the attorney-client privilege is appllicable.
1. The communication must come from the client only.
2. Statements must be made to an attorney.
3. Comments must relate to giving legal advice.
4. Statements made have the expectation of confidentiality.
5. Comments must not include discussing a future crime.
6. The attorney-client privilege must not be waived.
Two basic types of communications are protected. One, communications that involve asking for and receiving legal advice. Two, other communications intended to be kept confidential.
The ethical rule of “candor towards the tribunal” mandates that lawyers must be truthful with the court.. While attorneys need not disclose privileged communications, they cannot tell lies to the court on behalf of their clients. That is a privilege they do not enjoy. Attorneys also cannot knowingly allow their clients to lie to the court.
However, Virginia common law allows protection of attorney-client communications that meet the aforementioned criteria. Lawyers and clients sharing confidential information need not reveal its contents to third-parties.
Ryan C. Young | Richmond, Virginia | Civil Litigation Attorney
