When Can I Lose My Right to Confidentiality?

The most basic underpinning of the attorney-client relationship is the fact that client-lawyer communications must be kept confidential. A Massachusetts criminal defense attorney is legally prohibited from revealing a client’s written or oral statements to any other individual, which includes employers, prosecutors, family members, or friends, without the express consent of their client. It does not matter if their client maintains their innocence or confesses their guilt. Communications between an attorney and their clients are privileged. Both private MA criminal defense lawyers and public defenders appointed by the court are equally bound by these restrictions.

However, there are certain conditions under which a defendant can forgo their legal right to confidentiality. Here are four scenarios that you should be aware of:

§ Speaking In a Public Location

Let’s say that you discuss the specifics of your case with your lawyer in a public location, like a restaurant, loud enough for other patrons to overhear your conversation. Could these other diners testify as to what they heard? The answer is yes. Attorney-client communications are classified as confidential only if made within a context where there is a reasonable expectation that they will remain confidential. A client who speaks to their attorney in such a loud manner that other individuals can overhear the conversation does not have a reasonable expectation of privacy, and therefore, waives this privilege. In a similar fashion, a defendant who discusses their case on a cellular phone in a public location similarly risks forgoing confidentiality.

§ Inviting Another Person to Be Present

For reasons that are perfectly understandable, a defendant will sometimes wish for their friends, spouses, or even parents to be present when they are consulting with their attorneys. If another party is present, is the conversation still classified as confidential?

The answer is quite possibly no. A defendant who opts to bring a “stranger” (defined as another individual who is not a part of the lawyer-client relationship) into a consultation or meeting risks losing their legal right to confidentiality. A district attorney could be able to question either the defendant or the stranger about what was discussed during the meeting. However, an attorney can have the privilege maintained by persuading a judge that it was imperative for the stranger to be included in the conversation. For example, if the third party can assist the attorney in developing a strategy or otherwise shed light on the case at hand, their presence would not risk confidentiality.

§ Jailhouse and Prison Conversations Via Telephone

Jailhouse and prison conversations between lawyers and their clients are classified as confidential, as long as the discussion occurs in a private location within the jail and neither party speaks so loudly that others can overhear what they are discussing.

However, what about phone conversations made using either a payphone or conducted in person (those made by speaking through glass via a telephone)? A defendant must take precautions to ensure that other prisoners and their jailers do not overhear what is being spoken. It is not uncommon for these individuals to purposefully eavesdrop and then claim that they accidentally overheard incriminating info because the information was spoken in a loud voice. If a judge believes the third party, the privilege is forfeited, and the other prisoner will be allowed to testify to the to the defendant’s statement.

Frequently, a jailer will warn a prisoner that their phone may or may not be monitored. This warning by itself means that phone conversations between lawyers and their prisoner clients may not be classified as confidential. If a jailer monitors a telephone call and happens to hear a prisoner make a case damaging admission to their legal counsel, then the jailer will more than likely be permitted to testify to the defendant’s statements in a court of law.

§ Sharing Conversations With Others

A defendant with an oversized mouth waives the legal confidentiality of attorney-client communications when they share statements made in these conversations with a third party (outside of the perimeters of spousal communications). A defendant does not possess a reasonable expectation of privacy for conversations that are revealed to others.

If you have more questions about lawyer-client confidentiality or require legal representation, please contact our law firm immediately. Your initial consultation is 100% free.

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