Mark Roman | December 13, 2021 | Personal Injury
When you meet with a Clearwater personal injury attorney, does everything you say remain confidential? Most personal injury lawyers offer free, confidential consultations. However, what prevents the attorney from disclosing information learned during the meeting?
What is Privileged Information in a Florida Personal Injury Case?
Privileged information is information that cannot be disclosed without consent. Examples of privilege that could apply in a Florida legal case include:
- Attorney-client privilege
- Spousal communications privilege
- Privilege against self-incrimination
Many people are familiar with the protections against self-incrimination provided under the Fifth Amendment to the United States Constitution. A person cannot be forced to be a witness against himself in criminal court. Refusing to offer testimony that could incriminate yourself is often referred to as “pleading the Fifth.”
For our purposes, we are interested in the attorney-client privilege and how it can affect personal injury cases in Florida.
When Does Attorney-Client Privilege Apply in a Personal Injury Case?
Once you establish the attorney-client relationship, your attorney cannot be compelled to disclose privileged information related to the representation. Likewise, you cannot be compelled to testify about any privileged information you disclosed to your lawyer.
However, there are requirements for privilege to apply:
- The disclosure of information was made between a lawyer and a client or potential client
- The purpose of the communication between the individual and the lawyer was for the individual to obtain legal advice
- The individual had an expectation that the information disclosed would remain confidential
- The lawyer acted in his professional capacity during the meeting
You must be careful when disclosing information when a third party is present. Having someone else in the room that hears the information generally means privilege does not apply.
Do Free Consultations for Personal Injury Cases Count as Privileged?
There is some debate about when privilege attaches to the attorney-client relationship. If you sign a retainer agreement and hire a lawyer, attorney-client privilege applies. Anything you say in confidence to your lawyer should remain privileged unless it falls within a few narrow exceptions.
However, you have not retained the lawyer when you meet with a personal injury attorney for a free consultation. You do not have an attorney-client relationship at that point. Is the information you disclose during the free consultation really confidential?
If you reread the above requirements, the individual is not required to hire a lawyer for the privilege to apply. The requirements only state that the conversation and disclosure must be to seek legal advice.
Therefore, if you meet with an injury lawyer to discuss your legal options for filing a car accident lawsuit, a judge would likely rule that the information you disclosed during the consultation fell under attorney-client privilege.
When Can You Waive Attorney-Client Privilege?
In most cases, privileged information cannot be obtained through discovery requests. Discovery requests include depositions, interrogatories, and requests to produce. As a result, the person nor the attorney can be compelled to disclose the information in court.
However, there are instances where attorney-client privilege may be waived or may not apply.
First, a client can voluntarily waive attorney-client privilege. The attorney would be free to disclose the information with the client’s consent. Waiving privilege may be necessary to allow the attorney to negotiate a settlement or support a legal allegation.
There are situations in which privilege does not apply because the information is not protected based on public policy or a matter of law. Situations where privilege may not apply include but are not limited to:
- A client or potential client discloses information while seeking legal advice about how to commit a crime or fraud
- When the client dies and heirs or potential heirs file litigation regarding the decedent’s estate
- In a situation where the attorney represented both parties on a matter, and the parties now have a dispute related to the joint representation
- Law enforcement officials monitor the conversations between attorneys and inmates when there is probable cause privilege is being used to conceal terrorism
There could be instances where part of the information about a subject is privileged and other information is not privileged. For instance, the date and time of a meeting between a client and his lawyer may not be privileged, even though the private conversation between the parties is privileged.
Should I Tell My Clearwater Personal Injury Attorney Everything?
Once attorney-client privilege attaches to the relationship, yes, you should tell your attorney everything related to your injury case. A benefit of attorney-client privilege is that you can speak freely with your attorney. You do not need to fear that the information will be disclosed to another party.
Concealing information about your injury claim from your attorney could hurt your case. For instance, if you sustained a prior injury or were in a previous accident, do not hide the information to avoid a pre-existing condition challenge by the other party.
Instead, tell your lawyer immediately. Your attorney can develop a strategy for handling any issues related to your case, provided the attorney is aware of the issue.
The last place you want your attorney to learn about damaging information you concealed is during a deposition or trial. At that point, it may be too late to do anything about the matter, or your options for addressing the problem may be very limited.
Contact the Personal Injury Law Firm Of Roman Austin Personal Injury Lawyers To Get The Help You Deserve
If you need help with your injury case or you want to learn more information, please call the Personal Injury law firm of Roman Austin Personal Injury Lawyers at (727) 787-2500 or visit the nearest location to schedule a free case evaluation today.
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