Whether on television, in movies, or in real life, most people have heard the phrase “attorney/client privilege” at some point or another. But what does this term actually mean? Is everything a client says to their attorney protected? Can an attorney ever legally reveal something their client told them?

Understanding what attorney/client privilege is and what you can tell your attorney without fear of it being shared with others – including law enforcement, the government, or your opponent’s legal counsel – is crucial to protecting yourself and your own interests. This is just as important in a civil case like a car accident as it is in a criminal case.

What is attorney/client privilege?

In the context of the relationship between an attorney and their client, the term “privilege” simply refers to confidentiality. Under TN Code § 23-3-105, “No attorney, solicitor or counselor shall be permitted, in giving testimony against a client or person who consulted the attorney, solicitor or counselor professionally, to disclose any communication made to the attorney, solicitor or counselor as such by such person during the pendency of the suit, before or afterward, to the person’s injury.”

What is protected and what is not protected under attorney/client privilege?

According to Tennessee’s guidelines governing attorney/client privilege, an attorney cannot reveal information that they obtain in the course of their professional relationship with a client. That communication has been interpreted to include both written and verbal communication, and that has been interpreted to including digital communications as well, such as emails or texts.

When does attorney/client privilege start?

Generally, its starts once we all agree that our firm will represent you. There are times when it applies even before the agreement, though, so we always recommend folks ask: you’re better off asking right at the start, “Will this be privileged?”

Youi know what’s NOT covered, though? Anything you post online, regardless of whether we work with you. So if you post something on Twitter or Facebook, the other side can access that in discovery. If you ask us a question on social media, that, too, is discoverable.

What is not protected under attorney/client privilege?

Not all communications are privileged; you have to meet a specific set of requirements:

• The asserted holder of the privilege is or sought to becomes a client;
• The person to whom the communication was made
  1. is a member of the bar of a court, or his subordinate and
  2. in connection with this communication is acting as a lawyer;
• The communication relates to a fact of which the attorney was informed
  1. by his client
  2. without the presence of strangers
  3. for the purpose of securing primarily either
     1. an opinion on law or
     2. legal services or

• assistance in some legal proceeding, and not

1. for the purpose of committing a crime or tort; and

• The privilege has been (a) claimed and (b) not waived by the client.

In other words, if you text your lawyer that you plan to commit a crime, it’s not protected. If you see your lawyer in a coffee shop across from the courthouse and say something to him or her that could be used against you in a court of law, and you say it loud enough for the whole shop to hear – that’s not privileged, either.

Can a lawyer ever break attorney/client privilege?

Yes, but those requirements are even stricter,.

Under Tenn. R. Sup. Ct. 1.6, there are times when an attorney can share what you told them with other people:

1. A lawyer shall not reveal information relating to the representation of a client unless:
   1. the client gives informed consent;
   2. the disclosure is impliedly authorized in order to carry out the representation; or
   3. the disclosure is permitted by paragraph (b) or required by paragraph (c).

Let’s look specifically at #3, okay? Because that’s the one that trips people up. Under the Rules of Professional Conduct:

1. A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
   1. to prevent the client or another person from committing a crime, including a crime that is reasonably certain to result in substantial injury to the financial interest or property of another, unless disclosure is prohibited or restricted by RPC 3.3;
   2. to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services, unless disclosure is prohibited or restricted by RPC 3.3;
   3. to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a fraud in furtherance of which the client has used the lawyer’s services, unless disclosure is prohibited or restricted by RPC 3.3;
   4. to secure legal advice about the lawyer’s compliance with these Rules; or
   5. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
   6. to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
2. A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes disclosure is necessary:
   1. to prevent reasonably certain death or substantial bodily harm;
   2. to comply with an order of a tribunal requiring disclosure, but only if ordered to do so by the tribunal after the lawyer has asserted on behalf of the client all non-frivolous claims that the information sought by the tribunal is protected against disclosure by the attorney-client privilege or other applicable law; or
   3. to comply with RPC 3.3, 4.1, or other law.

Most of these relate to crimes: your lawyer can break privilege if he or she thinks you’re about to commit a crime or fraudulent act. Attorneys can also break privilege to get legal advice about the case (though that advice would likely be privileged itself, to protect themselves from their clients’ shenanigans (again – largely crime related), and if there an employment issue. So if you lawyer leaves the firm or the firm merges, for example, he or she can talk about the case to ensure there’s no conflict of interest.

Note: Breaking privilege is not something a lawyer does lightly. You can get in a lot of professional trouble that way. Lawyers have been reprimanded and suspended for it. The whole point of attorney/client privilege is that it allows you to tell your lawyer the while truth about what happened without fear. Because if we don’t know the truth – even if it’s a little ugly – we can’t help you effectively.

At Banks & Jones, we help people when they need it most. Whether you’re facing a criminal charge or living in pain after a car crash, we’ve got your back. If you’re reading to tell us your story, fill out the contact form or give us a call. Our lawyers are in Knoxville but we proudly serve all of Tennessee.