It can be hard to discuss embarrassing or sensitive issues with a stranger during a divorce, even if that person is your attorney. It can also be hard to feel secure bringing up matters like money, children, or possible infidelity and feeling comfortable enough to be fully honest. Thankfully, the attorney-client privilege requires your lawyer to keep all of your sensitive information private, but how does confidentiality in divorce proceedings work?
What is the attorney-client privilege?
The attorney-client privilege has a very practical importance to anyone considering hiring a lawyer, as it requires the attorney to keep matters told in confidence confidential. The privilege means that an attorney cannot be compelled, nor can he or she voluntarily disclose any matters that are relayed in confidence by the client. Rule 1.6 of the South Carolina Code of Professional Conduct states: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.”
When does confidentiality apply?
Though it may seem obvious, not everyone realizes that before the attorney-client privilege can exist, there must first be an attorney-client relationship. For this to happen, the parties must have agreed upon the representation of the client. This is typically straightforward, with both sides understanding that questions asked or information revealed when a person has become or is seeking to become a client are covered. Signing an agreement to employ counsel, fee contract, retainer agreement, or engagement letter or even entering into an oral agreement to begin representation are all evidence that such a relationship exists. No clear or written contracts are required for the attorney-client relationship to exist, as the relationship can be implied.
When is confidentiality waived?
There are times when confidentiality is waived and it is important for clients to be aware of this. Common examples of this occur when you speak in a public place, invite third parties into what would have been a confidential conversation, or disclose statements made in confidence with others after the fact. Lawyer-client communications are only confidential if they are made in a setting where it would be reasonable to expect them to remain confidential.
Source: “Confidentiality, Privilege: A Basic Value in Two Different Applications,” by Sue Michmerhuizen, published at AmericanBar.org.