Working with an attorney means many things, and one of those things is that communications between the attorney and client are protected under attorney-client privilege. However, what does this privilege mean, and what does it cover?
We have asked attorney, Alaina Sullivan, and here is what she had to say:
The Fair Debt Collections Practices Act
Debt collectors are protected from unfair and unethical debt collection practices of third-party debt collectors through the Fair Debt Collections Practices Act (FDCPA). The FDCPA is part of the Consumer Credit Care Protection Act, created in 1977.
The law details specific behavior that third-party debt collectors are prohibited from doing when attempting to collect on a debt on behalf of a creditor. If the debt collector violates any of the rules listed in the FDCPA, he or she has the right to seek damages through an FDCPA claim in state court.
If a debtor is interested in pursuing a legal claim, it is recommended that the debtor at least consult with an attorney before filing a claim.
What is Attorney-Client Privilege?
Attorney-client privilege covers communication, both written and oral, between a client and lawyer regarding legal advice. The communication does not need to be between an actual client but can cover prospective clients, as well.
This coverage means that if a client meets with an attorney for a consultation on an FDCPA issue, this communication is covered. The lawyer must be acting in his or her professional capacity as a lawyer and not simply giving advice as a friend.
In addition, during the conversation between the client and attorney, the client must have intended the communication to be private. The lawyer must keep this communication confident and cannot repeat them to anyone who is outside of the lawyer’s legal team, without the express consent of the client.
The privilege belongs to the client and not the lawyer, so it is only the client’s right to waive if he or she wishes. It remains in effect even after the attorney-client relationship ends or the client dies.
The Duty of Confidentiality
The attorney-client privilege keeps lawyers from testifying about communications with the debtor and revealing anything about their clients’ cases. Further, the duty of confidentiality keeps the lawyer from disclosing information about his or her clients to other individuals not associated with the firm.
All information regarding the case must be kept private, even if it did not directly come from the client. So long as the conversation was between the attorney and client specifically and not done in public where someone could overhear the conversation, the communication is kept private.
Actual and Prospective Clients
One common misconception is that the attorney-client privilege only covers communication with an attorney who has actually been hired by a client. However, it does cover communication between an attorney and prospective client.
Even if the client does not end up representing a client following a consultation, that communication is still kept within the confines of attorney-client privilege.
What Is Not Covered?
However, this does not mean that anything and everything said to the attorney is protected. Certain discussions are not protected, however. For example, if the client communicates information for the purpose of committing a crime or fraud, the privilege may not apply.
If the client is going to commit a crime or hurt someone else and tells the attorney this information, the attorney may be obligated to report it, especially if reporting the information will prevent death or serious injury.
Another hazy area occurs when a person talks to a lawyer not in the capacity of an attorney but rather a friend. If a conversation happens, and it is the attorney’s understanding that this communication was friend-to-friend and not client-attorney, this information may or may not be protected, as well.
The attorney-client privilege works the same way for pretty much any type of legal case. If the attorney gets information from the client that he is deliberately defrauding the court and lying about the behavior the client says happened with the debt collector, this information may similarly not be protected under the attorney-client privilege.
Contact an Attorney Today
If you find yourself dealing in the middle of stressful debt collection proceedings and you have questions about what to expect, it is recommended you talk to an experienced attorney. An attorney can listen to the facts of the case and can best advise you on how to proceed.
Contact an attorney experienced in fair debt collections proceedings to schedule a consultation today.