Does the attorney-client privilege apply if you haven't hired the lawyer yet?

Each day, countless people with legal problems consult attorneys before deciding if they want to hire them. Many, if not most, criminal defense attorneys offer free consultations for potential clients. Understandably, some defendants wonder whether such consultations—with attorneys who don't yet and might not ever represent them—are protected.

An attorney-client relationship generally doesn't form until the lawyer and client agree to it. But the attorney-client privilege protects some communications made before the prospective client hires the attorney--and even some where there's never any hire. In this article we'll look at exactly when attorney-client privilege begins, and how to know whether it applies to a conversation with a lawyer you haven't hired yet.

Does Attorney-Client Privilege Apply to Consultations?

In general, as long as a prospective client is seeking legal advice or representation, and reasonably believes the communication will be confidential, their consultation with an attorney is privileged. This means that free consultations with attorneys are covered by the same rules that apply to communications between lawyers and paying clients. (You can learn more about these rules in our overview of attorney-client privilege.)

Each state has its own regulations for lawyers. But the state-level rules about attorney-client privilege generally follow the guidance in the American Bar Association's Model Rules of Professional Conduct. According to the ABA Model Rules, anyone who "consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client." Prospective clients are protected by confidentiality even if no attorney-client relationship ever develops, and lawyers cannot use or reveal information provided by that person except in very rare situations.

Privilege can apply even if you haven't paid the lawyer, hired the lawyer, or signed a retainer agreement. A written agreement or a record of payments for legal services can demonstrate that an attorney-client relationship exists. But they aren't necessary to ensure attorney-client privilege.

This potential-client-confidentiality principle comes into play when, for example, arrestees consult with public defenders while in custody at police stations or jails. An arrestee's confidential conversations with the public defender are privileged, even though the public defender does not represent the arrestee, and even though the public defender doesn't receive a fee. And these conversations remain privileged even if the attorney doesn't end up taking on the arrestee as a client.

When Does Attorney-Client Privilege Not Apply?

You don't have to be officially working with a lawyer for attorney-client privilege to apply--but that doesn't mean that any conversation you have with a lawyer is protected. As we mentioned above, whether privilege applies depends, in part, on whether it was reasonable for someone to think that they were:

• having a confidential conversation with an attorney about a legal matter, or
• consulting with an attorney about the possibility of forming a lawyer-client relationship.

So, when is it unreasonable to expect that you're having a privileged conversation with an attorney? As the State Bar of California has explained, one key factor is what the attorney says and does. For example, you shouldn't assume a conversation is privileged if the lawyer:

• hasn't said or done anything to indicate they've agreed to a legal consultation
• tells you in advance that they can't or won't represent you, or
• cuts you off (or tries to cut you off) when you bring up a legal question or a personal legal issue.

It's also important to consider if the conversation is private. Courts generally assume that you've waived attorney-client privilege if you allow a third person to be present while speaking with a lawyer. There are exceptions to this general rule, but be careful about allowing anyone--even friends or loved ones--to join a conversation that you'd like to keep confidential.

Even if a lawyer and a prospective client intend to have a confidential conversation, privilege might not apply if they're talking where other people can listen--for example, at a party or on public transportation. So, your best option is always to wait until you have genuine privacy--for example, by making an appointment to speak with the lawyer at their office, or by scheduling a call where only the two of you will be present.

This doesn't mean you can never have a privileged conversation unless you're alone in a room with a lawyer. And, in some cases, it might not be possible to wait. If you need to speak with a lawyer right away, you can keep your voice down and ask the attorney if you can speak somewhere more private.

You should also be careful about what you say to a lawyer in an unsolicited voicemail, email, or other electronic message. As the ABA has noted, these kinds of "unilateral communications" don't necessarily make the sender a prospective client. Information a lawyer receives this way might be protected by ethics rules, or the lawyers own sense of their ethical obligations. But, even if you're responding to an attorney's ad, or emailing to ask for legal help, you shouldn't assume that the content of that first message is protected by attorney-client privilege.

These considerations don't just apply while you're communicating with a lawyer. Attorney-client privilege can be waived by disclosing privileged information after the fact--even if the disclosure was accidental.

Play It Safe

You can read more about how these rules apply in specific situations. Keep in mind, though, that there are nuances and potential differences from state to state. If you have concerns about your own communications with an attorney, it's a good idea to err on the side of caution. If you're contacting or speaking with a lawyer for the first time, the safest approach is to start any communication by confirming with him or her that your communications will be privileged.