Attorney client privilege: why won’t an attorney give me a file for my son/daughter when I paid the fee?

The attorney-client relationship

The attorney-client relationship has deep roots in this country and is one of the foremost ties built on trust.  The relationship can be established any time an attorney has given, or promises to give, legal advice to an individual seeking it.  However, the attorney-client confidentiality extends to potential clients as well, meaning if you speak to an attorney and make certain statements but never end up hiring her/her, that attorney is still bound not to repeat or disclose your statements. In re Auclair, 961 F.2d 65 (5th Cir. 1992).

The attorney-client privilege

The attorney-client privilege is a rule that protects the confidentiality of communications between lawyers and clients.  Under the 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 effectively represent their clients.

The Client’s Privilege

Generally, the attorney-client privilege applies when:

• an actual or potential client communicates with a lawyer regarding legal advice
• the lawyer is acting in a professional capacity (rather than, for example, as a friend), and
• the client intended the communications to be private and acted accordingly.

Lawyers may not reveal oral or written communications with clients that clients reasonably expect to remain private. A lawyer who has received a client’s confidences cannot repeat them to anyone outside the legal team without the client’s consent. In that sense, the privilege is the client’s, not the lawyer’s—the client can decide to forfeit (or waive) the privilege, but the lawyer cannot.

The privilege generally stays in effect even after the attorney-client relationship ends, and even after the client dies.

In other words, the lawyer can never divulge the client’s secrets without the client’s permission, unless some kind of exception (see below) applies. (United States v. White, 970 F.2d 328 (7th Cir. 1992); Swidler & Berlin v. United States, 524 U.S. 399 (1998).

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 ordinarily keep private almost all information related to the representation of the client, even if that information didn’t come from the client.

Expecting 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 secretly record the conversation, that recording would probably be inadmissible in court.  In Pennsylvania, these recordings are not only inadmissible but illegal and can lead to prosecution of the person who made a recording without the others’ consent.

But a client who speaks to a lawyer in public would not 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 typically remains obligated not to repeat it.

The client’s file

Many times, criminal clients are incarcerated, and family members or friends will pay the legal fee.  This does not entitle the family member or friend to private information shared between the attorney and the client. 

Likewise, the client’s file belongs to the client and simply because a family member or friend pays the legal fee, they are not entitled to a copy of the file.  There are certain documents that are kept in courthouses and members of the public can seek those documents directly from the court.

A firm does have the right to charge for copying and reproducing a file if the client needs any additional copy(ies) as well as the delivery fee.