Anderson Injury Lawyers | August 4, 2023 | Personal Injury
What is attorney-client privilege, and why should you care about it if you are searching for a Dallas personal injury lawyer? Privilege related to the law of evidence. Privileged information is not subject to discovery or disclosure by the court or other parties.
Several types of privilege could apply in legal matters, including:
- Spousal privileges (Rule 504 for the Texas Rules of Evidence)
- Privilege against self-incrimination (Fifth Amendment to the U.S. Constitution)
- Attorney-client privilege
A judge cannot force you to disclose privileged information with very few exceptions. As a result, the information cannot be used against you in court. Attorney-client privilege is often used in criminal cases but is also important in personal injury cases.
When Does Attorney-Client Privilege Attach in a Texas Personal Injury Case?
Attorney-client privilege refers to a client’s right to keep confidential communications with their lawyer private. Therefore, anything you discuss with your lawyer is not subject to discovery requests from the other party or an order to compel disclosure. Typically, attorney-client privilege applies when you establish an attorney-client relationship.
The four basic requirements for privilege to attach to an attorney-client relationship are:
- Information was disclosed between a lawyer and their client or potential client;
- The person’s intention in giving the information to the lawyer is to obtain legal advice;
- The person had a reasonable expectation that any information disclosed to the attorney during their meeting would remain confidential and private; and,
- The lawyer acted within the conduct of their professional capacity as an attorney during the meeting.
For information to be privileged, you must have an expectation of privacy during your meeting with the lawyer. For example, if a third party is present or the discussion is held in a public place, the expectation of privacy might not apply.
Are There Situations When Attorney-Client Privilege Might Not Apply?
There are exceptions to all types of privileges. Exceptions to attorney-client privilege include:
- A client asks the attorney for advice and/or information about how to commit a crime or fraud.
- Law enforcement agencies have probable cause to believe the discussions and communications between an inmate and their attorney is being used to further terrorism.
- A client dies, and heirs file a lawsuit in probate court regarding the estate
- An attorney represents two or more clients regarding the same matter, and disputes among the clients arise regarding the joint representation
The above list is not exhaustive. Other situations could justify a court order breaching attorney-client privilege. However, those situations are rare and often involve information that was not kept confidential and private between the client and the attorney.
Should I Waive Attorney-Client Privilege in a Personal Injury Case?
During discovery, the other party may request information that is privileged. If so, your attorney is not legally obligated to disclose the privileged information.
However, there could be situations where you would want to waive attorney-client privilege in a personal injury case. The information you discussed with your lawyer could have a significant impact on proving liability for your damages or the value of your personal injury claim. Your attorney will discuss these matters with you before disclosing privileged information.
For instance, suppose you told your lawyer extremely personal details about your intimate relations with your spouse. Your injury prevents you from engaging in the same type of sexual activity you did before the accident. You might not want that information in public records, but that information could significantly increase how much your case is worth.
Does Attorney-Client Privilege Apply to a Free Consultation With a Dallas Personal Injury Lawyer?
Whether attorney-client privilege applies to a free consultation depends on who you ask. Some sources argue there is no attorney-client relationship until a person hires a client. Without the attorney-client relationship, privilege would not attach.
However, other sources argue that a free consultation can meet the requirements for applying attorney-client privilege. If so, anything said during the free consultation would be privileged information.
The purpose of privilege is to encourage open and honest communication between a client and their lawyer. Unless an attorney knows everything the client knows, they cannot effectively advocate and represent their client.
If you are concerned about disclosing private information during a free consultation with a personal injury attorney, discuss your concerns with the lawyer before the meeting. The attorney will answer your questions, and you can decide how to proceed.
Should I Tell My Dallas Personal Injury Attorney Everything About My Case?
Two issues that often complicate a personal injury case are contributory fault and pre-existing conditions. If either of these situations applies in your case, it is crucial you tell your lawyer immediately so they can work to protect your best interests.
Texas Contributory Fault Laws
Comparative fault laws can reduce the amount of compensation you receive for a personal injury claim. Under the proportionate responsibility statute in Texas, you cannot recover any money for your claim if you are more than 50% to blame for causing the accident.
However, if you are 50% or less to blame, your compensation for damages is reduced by your percentage of fault. Therefore, if you are 30% to blame, you would only receive 70% of the damages awarded to you by the jury.
Insurance companies use comparative fault to undervalue claims, even when the victim is not to blame for causing the accident. Tell your lawyer everything about the accident and injury to help them prepare for any allegations that could arise.
Another common tactic insurance companies use to undervalue claims is allegations that a pre-existing condition is the reason for your injury. Do not try to hide pre-existing conditions or prior accidents and injuries from your lawyer. Your lawyer can work with medical specialists and your doctors to develop medical arguments proving the at-fault party is responsible for your injuries and damages.
Attorney-Client Privilege Exists To Protect Your Rights
The best way to increase your chances of winning your personal injury case is to be honest and forthcoming with your lawyer and follow their instructions. If you have questions about a personal injury claim, you can get answers during a free initial consultation with a Dallas personal injury attorney.