Attorney – Client Privilege

Attorney – client privilege begins during your initial consult. When you are charged with a crime or fear that you may be charged with a crime it is important to speak to an attorney as soon as possible. During my initial consultation with many clients there is a fear by the client that what they tell me is not protected under attorney – client privilege because we have not yet signed a representation agreement.

This is a normal and understandable concern, but it is also a situation that is dealt with by the Vermont Rules of Evidence clearly and concisely. A client, as defined by VRE 502(a)(1), is a person “who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.” Therefore, for purposes of privilege, the attorney-client privilege begins during the initial consultation.

What is Attorney – Client Privilege?

The general rule of attorney – client privilege in Vermont is as follows:

“A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer’s representative, (2) between his lawyer and the lawyer’s representative, (3) by him or his representative or his lawyer, or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.”

It is a specific rule that can be intimidating and confusing for the lay person. Let’s break it down.

Who does the Attorney – Client Privilege Belong To?

The CLIENT. It is the client’s privilege and the client is party that can refuse the disclosure of confidential communications pursuant to the rule.

What does the Attorney – Client Privilege Protect?

It protects confidential communications made by you to your lawyer (or your lawyer’s employees) that are made by you in furtherance the lawyer giving you professional legal services.

Are there exceptions to the Attorney – Client Privilege in Vermont?

Yes. Pursuant to Vermont Rule of Evidence 502(d) there are five exceptions. The exceptions are: (1) If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; (2) claimants through same deceased client; (3) breach of duty by a lawyer or client; (4) communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; and, (5) communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients.

lawyer typing at desk next to gavil

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