They say never lie to your lawyer. It is true. You shouldn’t. They are there to help you. At the same time, they also have a legal responsibility to keep your conversations confidential. This protection is commonly known as attorney-client privilege, which is in practice in California and other states in the United States. What if your attorney breaks it?
When can a breach of confidentiality become legal malpractice?
If your attorney’s breach of confidentiality jeopardized your case, it may constitute legal malpractice. However, for that, you should be able to prove the following things:
- You and the attorney shared an attorney-client relationship.
- You shared the information with your attorney in confidence.
- You never shared that information with anyone else.
An attorney who, without a duty of care, divulges your information may be held liable for legal malpractice.
There are limitations to attorney-client privilege
There are certain circumstances during which attorneys can disclose confidential information. At such times, it might not be called legal malpractice. They may breach the attorney-client privilege when:
- Disclosure is necessary to prevent certain serious harm or death
- Disclosure prevents certain future crimes or fraud, depending on applicable professional conduct rules
- Court orders disclosure
If you and your current adversary were joint clients of the attorney at one point in time, the communications shared during that period are usually exempt from protection.
What can you do now?
Every case is different and the court analyzes them based on their own merits. To protect your rights, you have to understand what your attorney was and wasn’t permitted to do. This offers a clear starting point for you to determine whether the breach was illegal and make an informed decision based on the specific facts of your situation.