Discussions of previous acts, such as speeding or log book violations that went undetected, are generally subject to attorney-client privilege.Max Heine
There are a couple of surefire ways for attorneys to find themselves disbarred. One is to violate attorney-client privilege. This happens to be one of the things I get asked about the most by truck drivers. It often comes in the form of, “You won’t tell my wife/husband/significant other I got this ticket, right?”
There seems to be a misconception that absolutely everything you say to your attorney is protected by attorney-client privilege. While most A/C discussions are protected, the protection is not universal.
The A/C privilege concept dates to Queen Elizabeth and English common law and was first recognized by the U.S. Supreme Court in 1906. After more than a century of legal fine-tuning, here, in very simplified terms, is what makes a conversation qualify for this protection: (1) you are a client; (2) I am a lawyer; (3) the disclosure is not related to intention to commit a crime; and (4) you claim the privilege.
Of course, the courts have carved out exceptions to A/C privilege. (Hey, it’s what they do and it keeps lawyers employed.) The most common involves the third element, plans for criminal activity, and is the most cited. There are other situations, such as certain fiduciary exceptions (think trust and estate cases), but I want to focus on the crime aspect.
The crime-fraud exception arose in a U.S. Supreme Court case over 100 years ago. The exception basically covers communications that further a crime, tort or fraud. In other words, if you are silly enough to discuss your future crime spree with your attorney, it is not privileged.
In addition, there are others ways that A/C privilege can be lost ... or waived. The most common way that I see drivers waive the privilege is by disclosing it to a third party. Think of A/C privilege as a secret between you and your attorney. The more people know the “secret,” the less likely the court is to consider the information privileged.
