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Michael Camareno

Dr. Guenzel

ENC 1102-0M31

15 April 2019

Don’t Ask, Don’t Tell: A Matter of Privilege

As citizens of the United States, we obtain the right to attorney if ever need be. In

addition to all of the rights guaranteed in United States Constitution, such as freedom of religion,

freedom of the press, freedom of assembly, the constitution also guarantees that all defendants in

a criminal case be entitled to the right of a lawyer. As a fundamental right, to have a lawyer

represent you in serious criminal matters, it is important that the lawyer be apprised of all

pertinent information to be able to adequately advise the client and decide the best course of

action. The information we decide to give our attorneys is vital in ensuring a favorable outcome

for the lawyer and the defendant. Under the law, said information is protected under the principle

of “attorney-client privilege.” Attorney-client privilege is defined as “a client's right privilege to

refuse to disclose and to prevent any other person from disclosing confidential communications

between the client and the attorney” (Garner 1391). In simpler terms, the privilege states that

whatever is discussed between an attorney and his/her client stays between them. Its purpose is

simple: to guarantee that the person seeking counsel receives precise legal advice without fear of

any information being exposed. There are three constituents involved with the topic of attorney-

client privilege: the lawyer, the defendant, and any third-party participants. This paper will

examine the perspectives of each constituent, from what happens if the privilege is broken to

ways around it.

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The first perspective I will be examining is that of the attorney. As the one responsible

for the future of their client’s lives, the attorney needs to be able to ensure that his/her client tell

them everything and exactly as the events occurred. If the client holds back information for fear

of that information leading to a third-party, then the lawyer cannot adequately represent and

advise their client. Therefore, the privilege ensures that the lawyer is fully apprised of all

pertinent facts to give a well-informed opinion. Without the presence of a lawyer, this doctrine

would not exist. Harvard University says, “A memorandum from one administrator to another

concerning a legal matter typically is not privileged. For the privilege to exist, the

communication must be to, from, or with an attorney. In addition, the communication must be

for the purpose of requesting or receiving legal advice” (1). That being said, the attorney

essentially holds all of the cards in this situation, being given their clients full trust in the matter.

Most attorneys have no problem upholding the privilege, however, it is not a foreign concept for

one to break it. Knowing this, one question remains: “What happens if attorney-client privilege is

broken?” Attorney-client privilege can be broken in two ways: legally or illegally. A lawyer can

break the privilege illegally by discussing confidential information with anyone without the

client’s consent. In this situation, the attorney can be disbarred and lose his/her license to

practice law. However, there is an exception to the privilege that the attorney alone is able to

recognize. This exception is called the “crime-fraud exception.” According to Nolo.com and the

crime-fraud exception, “a client’s communication to her attorney isn’t privileged if she made it

with the intention of committing or covering up a crime or fraud” (1). That being said, because

attorney-client privilege starts with communication from the client, their intentions with the

information they are giving determine whether or not the exception pertains. The crime-fraud

exception applies if the client is planning on committing a crime/in the process of doing so or if
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they disclosed information with the intent to cover up a crime. It is the lawyer’s job to determine

whether or not the communication is considered privileged after speaking with the client.

The second perspective I will be examining is that of the client. Now that we have

learned that an attorney is able to refute attorney-client privilege, it is time to discover how the

client is capable of the same thing. From the client’s perspective, it is important that they hold

complete trust in their attorney, having an open line of communication with his/her lawyer. If

they feel that that communication is impeded in anyway, then they will refrain from telling their

lawyer everything needs to be said. The most important

The third and final perspective that will be examined is that of any third-party

constituents. The privilege typically refers to communication solely between the lawyer and the

client. However, like previously mentioned, there are exceptions to this rule. What happens if

there is another person present during a conference between the two constituents? The general

regulation is that, by allowing a third-party to sit in during said conferences, the client is waiving

the privilege. This holds significance during trial because it gives the prosecution the power to

force the third-party to tell all that was said during the conversation. Despite the general

regulation, most states have opposing opinions on the matter. According to Nolo.com, “when a

third person is present, the attorney-client privilege continues to apply if that third person is there

in order to aid the cause. Put more specifically, the third person must be present while fulfilling a

role that furthers the defendant’s legal representation” (1). In other words, this constituent should

only benefit the client, not diminish their chances at success. There are many variations of third-

party affiliate can be. Some of which include paralegals, business associates and competitors,

investigator, government agencies, criminal justice authorities, or even a family member who

acts as an advisory figure. When distinguishing whether or not the attorney-client privilege
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pertains to a discussion involving a third-party, judges and jury deliberate about “whether or not

the defendant intended the communications to remain secret and the precise role of the third

person” (Nolo.com).

In conclusion, the United States Constitution guarantees all citizens the right to counsel

and adequate representation. A component of that right, is the client’s unhindered liberty to

discuss the facts of their care with their lawyer. But that liberty cannot be impeded by the notion

that a third-party can force a lawyer, or an employee of that law firm, to reveal what those

conversations entails. Therefore, it is imperative that all third parties, including prosecuting

attorneys, respect that privilege to ensure that the defendant gets the best representation entitled

by the constitution.
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Works Cited

"Attorney-Client Privilege." Attorney-Client Privilege. N.p., n.d. Web. 13 Apr. 2019.

Nolo. "The Attorney-Client Privilege When a Third Person Is Present." Www.nolo.com. Nolo, 07
Oct. 2014. Web. 13 Apr. 2019.

Nolo. "The Crime-Fraud Exception to the Attorney-Client Privilege." Www.nolo.com. Nolo, 04

Dec. 2014. Web. 15 Apr. 2019.

Wayne State University. "Wayne State University." Attorney Client Privilege - General Counsel
- Wayne State University. N.p., n.d. Web. 15 Apr. 2019.
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