Attorney Client Privilege - Family Law

Should you expect confidentiality if you’ve only had an initial consultation with an attorney and haven’t officially signed a retainer?


The attorney-client relationship is very important, and one of the most sacred aspects of that relationship is attorney-client privilege. In fact, this privilege is thought to date all the way back to ancient Rome, where governors were forbidden from calling their “advocates” or attorneys as witnesses, due to concern that the governors might not be able to trust their own defenders. 


If you’re looking for legal representation, you may be wondering, when does attorney-client privilege actually start? 


First, let’s clarify what attorney-client privilege means. It’s considered to be a legal privilege between an attorney and their client, where any type of communication (written or oral) for the purpose or potential of legal advice, is to be kept confidential. It’s required to be kept classified and protected from disclosure to a third party. 

The rule of attorney-client privilege creates a trusted bond between a client and their attorney. This helps the client feel like they can safely share any information with their attorney for the purpose of legal advice and the outcome of their case, without any reservations.


Generally speaking, it begins even if a client hasn’t officially retained an attorney. 


Choosing an attorney to represent you in a legal matter is a very personal decision. You may speak to several different attorneys before finally deciding on one that’s best for you and your circumstances. 


During these discussions, some details of the case or potential issues may come up. But, you’re still entitled to attorney-client privilege to protect any communication that you may have had during preliminary discussions. 


Even though the privilege is fairly broad and covers a lot of situations, there are a few instances where the privilege for attorney-client confidential communications do not apply:

  • When the client seeks the lawyer’s assistance in carrying out or planning a crime or known fraud 
  • If the lawyer reasonably believes that disclosure of confidential client communication is necessary to prevent death or substantial bodily harm, or if someone is going to commit a criminal act that will cause death or substantial bodily harm and disclosure of the confidential communication is necessary to prevent that act

This privilege truly covers things from start to finish. Not only are you protected before officially retaining an attorney and during your representation, but thanks to the Duty of Confidentiality, your attorney must maintain your privileged information and communication, even after your representation ends.  


As a client, you can intentionally waive the privilege and allow your attorney to share the confidential interactions or facts


But don’t make the mistake of unintentionally waiving that privilege by doing things such as, mistakenly telling a third party, or announcing something on social media that should remain confidential about your case. In those instances, your attorney may not be under any obligation to safeguard that information.


Most importantly, if you’re ever unsure about whether or not your communication is covered by attorney-client privilege, just ask! Details can vary and if it’s not clear to you, it’s always better be upfront and ask the attorney that you’re working with.