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Is attorney-client privilege at risk in the United States?

Many Elizabethtown residents who have read recent headlines may be worried or confused about the fate of any privileged conversations they may have had with their criminal defense attorneys. After all, if the president of the United States can't count on attorney-client privilege to be sacrosanct, how can anyone else?

Fortunately, those fears or misconceptions are misguided. There is absolutely no threat to "one of the oldest recognized privileges for confidential communications," as William H. Rehnquist wrote in a majority opinion back in 1998 when he was the chief justice for the U.S. Supreme Court.

The 6-3 decision that was handed down dealt with a Washington, D.C. attorney's notes from a conversation he had with a distraught Vincent Foster, deputy White House counsel under the Clinton administration. Within a fortnight of that meeting, Foster would take his own life. Kenneth Starr, the appointed independent counsel investigating Clinton, sought the release of those notes but was stymied by the high court's ruling.

Rehnquist added that while attorney-client privilege "is intended to encourage full and frank communication between attorneys and their clients . . . it is not an absolute or unlimited protection for privacy."

It should also be noted that during the same investigation, the court ruled that some notes and conversations between then-President Clinton and his lawyers did not fall into the privileged category.

What makes the difference?

Despite tweets to the contrary, nearly everything said between clients and attorneys is privileged. The limitations to this rule include the "crime-fraud exception." What that boils down to is that anything an attorney says to a client to plan or perpetuate a crime is fair game for prosecutors. Additionally, to carry privilege, these conversations must deal with legal advice and do not include all interactions between the two parties.

For all intents and purposes, most Americans will never have to worry about such a scenario occurring. For one thing, the moment a client begins to lead the conversation in such a direction, the attorney is likely to immediately shut it down or redirect it to safer grounds. Few attorneys will risk their law licenses and freedom to conspire with clients.

Bottom line — there is no need to worry that you can't speak freely with your Kentucky criminal defense attorney.

Source: Los Angeles Times, "Attorney-client privilege is a privacy shield, but not for continuing crimes," David G Savage, April 11, 2018

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  • Kentucky Justice Association
  • Kentucky Bar Association 1871 Lex Ordo Justicia
  • United States District Court Western District Of Kentucky
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