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Are There Limits to Attorney-Client Privilege in New York?

Are There Limits to Attorney-Client Privilege in New York?

Thanks to movies and the news, most people are aware of the existence of the attorney-client privilege and that it protects communications between lawyer and client. However, what you may not know is that there are limitations and exceptions to the attorney-client privilege in New York.  

Here is what you need to know about these exceptions and limitations to the attorney-client privilege in New York.   

What Is Attorney-Client Privilege? 

The attorney-client privilege is foundational to the system of laws in New York and across the United States. The protection permits and encourages those in need of legal help to fully disclose their circumstances to their attorneys, which in turn allows attorneys to better serve their clients.  

Without this protection in place, clients would likely withhold key information from their attorneys, and both the client and the system of justice would suffer. But keep in mind that the attorney-client privilege is not a blanket or absolute privilege. There are various instances where communications with an attorney are not covered.  

In general, attorney-client privilege is said to apply in New York when an attorney-client relationship exists, and the communications in question were made in confidence by the client for the purpose of seeking legal advice or services. 

Federally, the rules controlling attorney-client privilege are substantially similar to those found in New York. For the privilege to apply at the federal level, communications must be between an attorney and their clients, intended as confidential — and were, in fact, confidential — and for the purpose of seeking legal services from the attorney. 

Limits and Exceptions to Attorney-Client Privilege 

The courts and legislature of New York have created or identified various exceptions to the attorney-client privilege. 

Third-Party Presence 

Communications made between an attorney and their client are not usually protected if a third party is present during the communications. A third party is someone other than the attorney and the client, such as a friend or family member of the client. An exception to this rule, however, exists when the third party is part of the attorney’s legal team.  

For example, the presence of a paralegal working for a car accident attorney does not interfere with the attorney-client privilege. However, if a client’s brother is present, the privilege is no longer in place.  

Facts vs. Communication of Facts 

The attorney-client privilege protects communications between lawyer and client, but not always what is contained in those communications, such as facts. For instance, if a client informs their attorney that they were present at an accident scene, the fact that the client gave this news to the attorney is protected.  

However, what is not protected is the fact that the client was present at the accident scene.  

Physical Objects 

Often, clients turn objects over to their lawyers during the course of their legal cases. These objects, which are often evidence, are not protected under the attorney-client privilege, even though they were given to the attorney by the client. The privilege only protects communications and not objects.  

Legal Advice Only 

The attorney-client privilege only applies when the client is seeking legal advice, representation, or guidance from the attorney. For example, if an attorney is asked to give policy or financial advice to an individual, their communications and those of the individual will not be protected by the privilege.  

Criminal or Fraudulent Communications 

The attorney-client privilege does not protect clients when they seek criminal advice or assistance from their attorney or assistance with fraudulent actions. For instance, the communications of a client asking their attorney to help them dispose of evidence unlawfully are not protected by the privilege.  

Additionally, if an attorney reasonably believes that their client is about to commit a crime, the attorney may divulge protected communications to prevent the crime from occurring.  

Other instances when the privilege may be limited or may not apply include: 

  • When the attorney must defend themselves or prove legal compliance  
  • When an attorney is seeking to establish or collect a fee 
  • When a client consents 

Keep in mind that in every case involving the divulging of protected client communications, attorneys must seek the least damaging method of doing so. In other words, an attorney should seek to release only as much protected information as necessary.  

As you can see, the attorney-client privilege is not absolute. It can be overruled under various circumstances. But in the end, it provides significant protection for clients. 

Speak With an Experienced Lawyer Today 

If you have questions or concerns relating to attorney-client privilege in New York, the legal team over at Silberstein, Awad & Miklos is ready to assist you. Contact us for a free consultation with a seasoned injury attorney today.