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Privileges in Court and Confidentiality

The terms attorney-client privilege and attorney-client confidentiality are sometimes used interchangeably, notes Fort Lauderdale criminal attorney Moore, but in fact have very different meanings. Privilege, between clients and their attorneys or in other protected relationships, is the criminal defendant’s right not to have that person testify regarding their conversations. Confidentiality, on the other hand, refers to an attorney’s obligation not to reveal the details of the private conversations he has with his clients. Both confidentiality and privilege can be broken in very limited circumstances. Privilege may be waived by a client, for example, according to Broward criminal attorney Moore. Confidentiality may not apply where a client discloses to his attorney his plans to commit FUTURE crimes or fraud, where the attorney may need to act in order to protect, for example, someone’s personal safety. If a client calls his attorney and informs him that he is on his way to his ex-wife’s house to kill her, the attorney can and should notify law enforcement immediately in order to protect the woman. However, if a client hires a defense attorney and describes to him how he committed the crime for which he has been charged, confidentiality applies, says Broward criminal lawyer Moore. Attorneys must also abide by ethical rules that prevent their participation in or furtherance of clients’ criminal or fraudulent activities.

Privilege applies to some other relationships, as well. In some circumstances, one spouse may be able to prevent the other from testifying at a trial. The Florida rule states: “spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.” This means that even if the couple later divorced, the contents of the private conversations they had while married cannot be elicited from the other spouse in the courtroom.

Confidential communications between a parishioner and his clergyman (or rabbi or other spiritual advisor) are also privileged, so long as the conversations were private. Accountant-client privilege also exists Private conversations with a psychotherapist, even regarding alcoholism or other addiction problems, are privileged, although it is limited in circumstances where the patient may require hospitalization or be a threat to his own safety or the safety of others. Conversations with domestic violence or sexual assault counselors, provided they meet minimum qualification standards, are also subject to privilege.

Article contributed by Mallory Lynn, Esq.

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