The Importance of Maintaining Confidentiality with Your Criminal Defense Attorney

Most people have a general understanding that communications with their criminal defense lawyer are confidential. But, benefitting from that confidentiality requires an understanding of what is and is not confidential, and why it matters.

What is Attorney-Client Confidentiality?

Certain types of communications between a criminal attorney and their client are legally considered confidential. That means that with very limited exceptions, neither party can be compelled to disclose them. This is obviously different from similar communications with others. For example, if someone who has been charged with battery says, “I didn’t hit him, I just pushed him” to their sister, she can be subpoenaed to court to testify that the defendant admitted to having pushed the alleged victim. If she refuses to testify, she can be held in contempt of court.

If the defendant makes the same statement to their attorney in a private consultation for the purpose of getting legal advice and planning their defense, the attorney can’t be compelled to reveal what was said. In fact, they’re not allowed to do so without the client’s consent. The prosecution also can’t question the defendant about what they said to their attorney in that setting.

Why Confidentiality Matters

This type of confidentiality is critical because it allows the criminal defendant to be honest with their attorney without fear that what they say will be used against them. This honesty is essential if the defendant is going to receive the right advice, and for the criminal defense lawyer to prepare the case.

Some criminal defendants make the mistake of believing that everything they say to their attorney is considered confidential. This can lead to serious mistakes. It’s important to understand what communications between the client and a criminal defense lawyer are not considered confidential. For example, services sought or obtained to assist in the commission of or planning of a crime are not covered by confidentiality.

What You Can Do To Protect Confidentiality

One key element in attorney-client confidentiality is that you must have an expectation of confidentiality. That doesn’t mean that you expect the lawyer will only reveal what you’ve said to or in front of people you choose–it means that you expect the conversation to be secret between you and your lawyer. That means that in order to expect confidentiality in a communication, you should:

• Speak to your attorney about your case only in private. That means when you are alone with your attorney or with members of your attorney’s staff or experts they have hired who your attorney says are covered by attorney-client privilege.
• Do not copy friends or family on communications with your attorney or forward emails you sent to or received from your attorney to someone else.
• Do not discuss your conversations with your attorney with anyone else.
• Do not discuss your case with your attorney in a public setting where there is a reasonable possibility of being overheard, or otherwise act in a way that suggests you do not expect the conversation to be secret.

Clients often make mistakes regarding confidentiality and sometimes these mistakes can be quite harmful. Some common mistakes regarding confidentiality include the following:

• A defendant who makes statements or claims about the underlying facts of their case in the presence of a friend or family member and their attorney. In such situations, clients often think such statements are covered by attorney-client privilege, but such statements are not protected. The reason for the lack of protection relates to the fact that there is another person present besides the defendant and counsel. This additional person negates the privilege and renders whatever is stated admissible.
• A defendant who tells a family member or a friend about what they recently told their defense attorney regarding the underlying facts of their case. It’s important to know that repeating what you’ve told your defense attorney to someone else doesn’t make that conversation protected. In fact, the person you tell could be compelled to testify about everything you’ve told them if the prosecution learned of the conversation.
• Asking your lawyer to tell your family members what you’ve said happened. Fortunately, even if a Defendant asks for this to be done, most defense attorneys have enough sense not to do it. However, it’s important to understand that this couldn’t be accomplished without waiving the protection of attorney-client privilege, and that would never be in a client’s best interest. That, but for advice about how to commit another crime and get away with it.
• Asking your attorney how to commit a crime or for help in committing a crime. Attorney-client confidentiality is intended to protect legitimate communications, such as obtaining advice and developing trial strategies. It does not protect an effort to make the attorney your accomplice. That means your communications won’t be protected if you:
  • Ask your lawyer for advice about how to commit another crime and get away with it.
  • Ask your lawyer for advice about tampering with or intimidating jurors or otherwise corrupting the judicial process.
  • Ask your lawyer for advice about disposing of evidence against you.

Keeping Confidential Information Confidential Starts Early

While attorney-client confidentiality isn’t specifically in play (and you won’t have had your attorney explain it to you) until you consult with a local criminal lawyer, you can take steps to keep information about your case confidential from day one. That starts with not talking about your case with anyone else.

You may think that you can admit to your best friend that you’re guilty and they’d never turn on you. But, if the prosecution figures out that they know something, they could be compelled to testify in court. And, if they lie for you, they could face perjury charges. So, sharing information with them puts both of you at risk.

This may be true even with information that seems less significant than confessing your guilt. The best way to protect yourself is to hire a criminal defense lawyer right away and talk only to them and others covered by confidentiality about your case.

You Don’t Have to Figure it Out Alone – Talk to Your Criminal Attorney

It’s never a good idea to rely on your best guess about a legal issue, and that’s true for attorney-client confidentiality issues as well. Your criminal defense attorney will likely caution you about common ways you can accidentally lose confidentiality. But, if you are unsure or have questions, just ask your criminal lawyer. If you’re unsure and you aren’t in a situation where you can ask your criminal defense lawyer right away, err on the side of saying nothing about your case.

Losing control of information about your case is just one of the pitfalls for people facing Florida criminal charges. If you have been charged with a crime, or know that you are being investigated for a crime, you should speak with a criminal defense attorney immediately. Attorney Matthew Lufrano has devoted his career to fighting for people facing criminal charges in Jacksonville and throughout the state of Florida. To learn more about how he can help, call 904-523-3905 right now, or fill out the contact form on this page.