The Attorney-Client Privilege

The attorney-client privilege is a rule that protects the confidentiality of communications between lawyers and clients. Under the rule, attorneys may not divulge their clients' secrets, nor may others force them to. The purpose of the privilege is to encourage clients to openly share information with their lawyers and to let lawyers effectively represent their clients.

The Client's Privilege

Generally, the attorney-client privilege applies when:

• an actual or potential client communicates with a lawyer regarding legal advice
• the lawyer is acting in a professional capacity (rather than, for example, as a friend), and
• the client intended the communications to be private and acted accordingly.

The Scope and Duration of the Privilege

Lawyers can't reveal oral or written communications with clients that clients reasonably expect to remain private. A lawyer who has received a client's confidences must not repeat them to anyone outside the legal team without the client's consent. In that sense, the privilege is the client's, not the lawyer's—the client can decide to forfeit (or waive) the privilege, but the lawyer cannot.

The privilege generally stays in effect even after the attorney-client relationship ends, and even after the client dies. In other words, the lawyer can never divulge the client's secrets without the client's permission, unless some kind of exception (see below) applies. (United States v. White, 970 F.2d 328 (7th Cir. 1992); Swidler & Berlin v. United States, 524 U.S. 399 (1998).)

A Reasonable Expectation of Confidentiality Is Key

Lawyer-client communications are covered by the attorney-client privilege only if the circumstances lend themselves to confidentiality. For example, clients who speak to their lawyers about pending lawsuits in private, with no one else present, can reasonably expect secrecy. If someone were to secretly record the conversation, that recording would probably be inadmissible in court.

But a client who speaks to a lawyer in public wouldn't be able to prevent someone who overheard the conversation from testifying about it. Similarly, a client can forfeit the attorney-client privilege by repeating a conversation with an attorney to someone else, or by having a third person present during a conversation with the lawyer. No matter who hears or learns about a communication, however, the lawyer typically remains obligated not to repeat it.

Is the Attorney's Duty of Confidentiality the Same as Privilege?

No, the attorney's duty of confidentiality is related to, but broader than, the attorney-client privilege. Strictly speaking, the attorney-client privilege is a rule of evidence. It prevents lawyers from testifying about, and from being forced to testify about, their clients' statements.

Independent of that privilege, lawyers also owe their clients a duty of confidentiality. The duty of confidentiality prevents lawyers from even informally discussing information related to their clients' cases with others. They must ordinarily keep private almost all information related to their representation of the client, even if that information didn't come from the client.

Exceptions to Attorney-Client Privilege

The attorney-client privilege isn't absolute. Several exceptions—including lack of confidentiality discussed above—can limit the availability and scope of the privilege. State and federal court systems get to decide what exceptions they recognize, so be sure to check the rules that apply to your case.

Generally speaking, common attorney-client privilege exceptions include:

• Failure to assert privilege. When an opposing party tries to compel disclosure of privileged materials, it's up to the client, usually acting through counsel, to assert privilege. Failing to claim that communications are privileged can mean the communications are fair game in litigation.
• Waiver of the privilege. As mentioned above, the privilege belongs to the client. When a client discloses otherwise privileged communications, or takes steps to relinquish the privilege, they might be found to have waived the privilege, subjecting the communications to disclosure.
• Complying with the law or a court order. Counsel can be required to share confidential communications when necessary to comply with the law or with a valid court order. In these circumstances, disclosure isn't likely to happen unless a court has reviewed the facts and circumstances to decide on the necessity of disclosure.
• Crime-fraud exception. One key purpose of the attorney-client privilege is to encourage frank client communications, so that counsel can urge clients to follow the law. Using the privilege to shield client communications that enable or further criminal, fraudulent, or otherwise unlawful activities flies in the face of that purpose.

Artificial Intelligence Models and Chatbots

You might be tempted to ask your favorite artificial intelligence (AI) model or chatbot—like OpenAI's ChatGPT or Anthropic's Claude—for legal advice. That's a bad idea, because your communications with an AI chatbot aren't confidential, and they're not protected by the attorney-client privilege.

No Attorney-Client Privilege

As a rule, the attorney-client privilege only protects communications between you and your attorney. No matter how realistic or authoritative it might sound, an AI chatbot isn't an attorney. It can't have an attorney-client relationship with you, and it can't give you legal advice.

Because an AI chatbot isn't an attorney, your communications with it aren't protected by the attorney-client privilege. Anything you say to a chatbot, and anything it tells you in response, can be discovered by your opponent and their lawyer—including the prosecutor in a criminal case. Worse yet, they can use those communications against you in court.

Beware of Attorney Website Chatbots

You were arrested for DWI. While doing some online research, you came across the website of a local DWI lawyer. In the lower-right corner of the page, the site had a popup with a photo of a person that said "Do you have a legal problem I can help you with?" You thought you were talking to a lawyer or maybe a paralegal, so you told the story of your DWI.

That conversation could land you in jail. Here's why.

In some law offices, chat dialogs are staffed by actual people—a lawyer or their professional staff. If so, your communications should be privileged. But other times, you're "speaking" with an AI chatbot, one created by a third party and licensed for use by lawyers. In that situation, what you say to the chatbot might not be in confidence, and it might not be protected by the attorney-client privilege.

So, here's the moral of the story: Don't disclose anything about your case that you want to be confidential to a chatbot. And you should assume that you want everything about your case to be confidential. Say you want to talk to a lawyer, or you want to make an appointment, and leave it at that. Leave the confidential details for face-to-face discussions.

Actual Clients Only?

Preliminary communications between a potential client and a lawyer are normally subject to the attorney-client privilege. That means that lawyers can't disclose what potential clients reveal in confidence even if the lawyers never end up representing them. (In re Auclair, 961 F.2d 65 (5th Cir. 1992).) To be sure, though, you should confirm with a lawyer you haven't hired that the privilege applies before you reveal anything you want to keep secret.

Past and Future Misbehavior

Discussions of previous acts are generally covered by the attorney-client privilege. If, for example, a client tells his lawyer that he robbed a bank or lied about assets during a divorce, the lawyer probably can't disclose the information.

But if a client initiates a communication with a lawyer for the purpose of committing a crime or an act of fraud in the future, the attorney-client privilege typically doesn't apply. Likewise, most states allow—or require—attorneys to disclose information learned from a client that will prevent death or serious injury. Many have a similar rule where revealing otherwise confidential information would prevent or help recover money lost due to a crime or fraud.

Talk to a Lawyer

The attorney-client privilege differs somewhat from state to state, and between state and federal court. When speaking to an attorney about a legal matter, make sure to go over the scope of the attorney-client privilege and the duty of confidentiality. The lawyer should be able to explain the specific law that applies to your situation, including relevant legal rules not mentioned in this article.