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Lawyer Confidentiality Has Limits

<i> Klein is an attorney and assistant to the publisher of The Times. Brown is professor of law emeritus at USC and chairman of the board for the National Center for Preventive Law. </i>

Everything you tell your lawyer is strictly confidential, right? You can confide your innermost secrets, with nothing to worry about. No one will ever find out, right? Your lawyer can never testify against you, right?

Wrong.

All wrong.

Although it is rare for a lawyer to break that confidence, it is permitted by law and legal ethics in certain prescribed situations.

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In a recent law review article, Prof. Lee A. Pizzimenti of the University of Toledo argues that lawyers are “morally required and should be legally required” to be forthright with their clients and explain the exceptions to the attorney-client privilege at the beginning of their relationship.

In this way, clients will understand the possibility of disclosure of their secrets, and thus fully informed, can decide for themselves whether they should tell all to their lawyers. And what they should keep to themselves.

It’s unlikely that very many lawyers have read Prof. Pizzimenti’s article, and even less likely that scores of lawyers are following his advice and giving detailed warnings about the limits of lawyer-client confidentiality. So in the spirit of full disclosure, and to help you better understand the limits and exceptions, here is a brief summary of some of them:

* Future crimes. If a client tells his lawyer about a serious crime he intends to commit, the lawyer is not bound by confidentiality. The lawyer can turn his own client in to law enforcement authorities.

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* Perjury. A lawyer is required by the ethical codes to try to dissuade his or her client from commiting perjury. In some states, a lawyer is actually required to disclose after learning that the client will lie or has lied on the witness stand.

* Suing your lawyer. If you sue your lawyer for legal malpractice, for bungling your legal affairs--not because of simple mistakes, but because of negligence or recklessness--then you’d better expect to see your lawyer on the witness stand against you. And some of those things you told your lawyer in confidence will be permitted to be discussed in open court if they are relevant to the suit.

* Your lawyer suing you. If your lawyer has to sue you to collect legal fees that you didn’t pay, your confidences may also be disclosed. By the way, in most cases, you, as a client, can choose arbitration of fee disputes instead of litigation.

* Waiver. The client can always waive--that means give up--the confidential nature of the communication with a lawyer. That seems relatively simple and straightforward when a client explicitly agrees that a lawyer can reveal certain confidences. The trickier situation occurs when the waiver occurs without any express statement by the client. This can happen when a client tells others what went on or what was privately told to the lawyer. The client is said to waive the confidence and privilege by voluntarily telling others. So if you want to preserve the attorney-client privilege, don’t blab to others what you only tell your lawyer. If you think that others should know something, check with your lawyer before you talk to them or before you show them letters that your lawyer sent you.

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In general, lawyers take the promise of confidentiality very seriously. And it’s not likely that these exceptions will apply in your case. But we thought you should know.


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