Understanding and Avoiding the Pitfalls of Attorney-Client Privilege

You may have heard a lawyer on TV refuse to provide information on the basis that it is “privileged,” but what exactly does that mean?

Certain communications between an attorney and their client are protected by "attorney-client privilege," which basically means your lawyer can’t be forced to share what you tell them. For example, if your lawyer is called as a witness in a trial, or if someone tries to require them to provide evidence about you, they don’t have to disclose any privileged information.

What's the difference between privilege and confidentiality?

Another related, but legally distinct, concept is keeping information "confidential."

In this chart below, we see how privilege and confidentiality both protect your case, but in different ways.

There are important differences between these two categories of protected information. While attorneys work to ensure their clients’ confidentiality, clients must also avoid privilege issues themselves.

What does this mean for me?

Attorney-client privilege lets you talk openly with your attorney and get legal advice without worrying that your words will be shared with the other side. But losing that privilege could harm your case, and one of the most common ways clients run into trouble is by accidentally giving up that protection.

What counts as waiving attorney-client privilege in Minnesota and Wisconsin?

You give up privilege any time you share the same information with someone outside your attorney's office, even by accident. Once you do, that information may no longer be protected for the rest of your case.

If you give up privilege for one document or conversation, on purpose or by accident, the other side may claim you gave up privilege for other documents or conversations on the same topic.

To keep information privileged, you need to keep it private. Losing this protection can hurt your chances in court, help the other side, and expose private details you wanted to keep to yourself.

In Minnesota, this protection comes from Minnesota Statute 595.02, subd. 1(b), which stops your attorney and their staff from being questioned about your conversations without your permission. In Wisconsin, the same protection is in Wisconsin Statute 905.03.

Can texting my friend about my accident risk my lawsuit?

Yes. If you text or email a friend or family member about what you and your attorney discussed, or about details of your case, you may give up privilege for that same information. Texts, direct messages, and social media posts are treated the same way as spoken conversations. Once you share something with someone outside that relationship, it usually stops being protected.

This is different from documenting the facts of your accident for your personal case file, however. Sharing evidence with your attorney is protected. Sharing your attorney's advice, or your own case strategy, with someone else isn’t.

What should I avoid doing while my case is open?

• Don't text, email, or talk about your case with friends or family outside your attorney's office. Sharing what you told your lawyer with someone else can end privilege for that same information.
• Don't post about your accident, injuries, or case on social media. These posts can also affect the value of your settlement, and once something is public, privilege won’t protect it.
• Don't copy relatives or coworkers on emails to your attorney. Adding anyone outside the attorney-client relationship to the conversation can end privilege for everyone included.
• Don't discuss your case with insurance adjusters without your attorney present. Anything you say directly to an insurance company isn’t privileged, even if you consider it private.
• Don't forward your attorney's advice or emails to anyone else, even someone you trust. Once you share privileged advice with a third party, you generally can’t get that protection back.
• Don't ask AI (artificial intelligence) about your case. It can be tempting to seek answers from AI chatbots, especially when dealing with new legal concepts and processes. But if you upload case details to these third-party AI systems, you may waive privilege and open the door for the other side to request the logs of everything you told the AI. Keep all communication strictly between yourself, your attorney, and your attorney's staff to protect your case.

If you've been injured in an accident or have questions about how attorney-client privilege applies to your case, reach out to our team for a free consultation. You don't have to make sense of this on your own.