Exceptions to Attorney-Client Privilege
As the Supreme Court of Ohio has stated, “A fundamental principle in the attorney-client relationship is that the attorney shall maintain the confidentiality of any information learned during the attorney-client relationship.”
Clearly, attorney-client privilege is an important component of an attorney’s ethical responsibilities. However, there are multiple and complex situations when attorney-client privilege may not apply – when the legal process compels the disclosure of privileged information, or when which clients may be deemed to have waived attorney-client privilege.
The first, and most simple, distinction is that what is privileged is the content of the communications between the clients and their lawyers — what clients say or write to their lawyers. The facts about what clients knew, did, or failed to do are not privileged. Therefore, clients cannot hide facts simply by telling them to their lawyers.
In Ohio, the general rules about disclosing information relating to the representation of clients can be summarized as follows:
- The lawyer must take reasonable measures to correct the situation if the client, a witness or the lawyer himself or herself offered false evidence that the lawyer later learns it is false. Those measures include disclosing the situation to the court if necessary.
- Lawyers must be totally truthful when making statements to others. And when representing clients, lawyers also need to disclose any material facts necessary to avoid helping in the illegal or fraudulent acts of those clients.
- The lawyer for an organization is compelled to respond when he or she knows —or reasonably should know — that a director, officer, owner, trustee, or employee of the organization has violated a legal obligation to the organization. This only requires lawyers to respond within and not without the organization unless one of the other rules applies.