“Attorney-Client Privilege” and When It Begins
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Attorney-client privilege is an evidentiary protection that generally allows a client to refuse to disclose, and to prevent others from disclosing, confidential communications made to obtain or provide legal advice. In Maryland, the privilege protects qualifying communications, not every fact a client tells a lawyer or every document a lawyer receives. It belongs to the client, who may waive it, and it is distinct from a lawyer’s broader professional duty to protect information relating to a representation.
When the privilege first arises
The privilege can attach at the first qualifying confidential communication made to a lawyer for the purpose of seeking legal advice, including during an initial consultation before a fee agreement is signed or a formal attorney-client engagement begins. The label “prospective client” or the absence of a signed retainer is not by itself decisive. The communication must be made to someone acting as a lawyer, or reasonably approached in that professional capacity, and the person must intend it to be confidential and seek legal advice. Whether a particular preliminary contact qualifies depends on the circumstances.
Maryland uses the traditional elements described in Newman v. State: legal advice is sought from a professional legal adviser acting as such; the communication relates to that purpose; it is made in confidence by the client; and it is intended to remain protected from disclosure, unless the client waives the protection. Maryland’s statute provides that a person may not be compelled to testify in violation of the privilege. See Md. Code, Courts & Judicial Proceedings § 9-108; Newman v. State, 384 Md. 285, 300–04, 863 A.2d 321 (2004).
What the privilege does and does not cover
The privilege generally covers confidential communications, including oral conversations and written or electronic messages, when they are made to obtain or provide legal advice. It does not make the underlying events or facts secret: a client may still be asked what happened, even if the client also described those facts to counsel. A pre-existing document does not become privileged merely because it is sent to a lawyer. Communications shared with unnecessary outsiders may lose protection; a third party who is reasonably needed to help the lawyer provide legal advice may be treated differently.
Privilege also differs from the lawyer’s ethical confidentiality duty. The privilege is an evidentiary rule about compelled disclosure of protected communications. Maryland Rule 19-301.6 generally bars a lawyer from revealing information relating to a client’s representation, a broader category that can include information that is not privileged. Exceptions and limits apply to both doctrines, but they are not identical. The crime-fraud exception, for example, generally does not protect communications used to seek legal assistance to carry out or advance a crime or fraud; asking a lawyer about past wrongdoing does not, by itself, fit that exception.
Practical precautions
A person seeking advice should clearly approach the lawyer for legal advice, ask that the consultation remain confidential, and avoid copying unnecessary third parties on communications. A lawyer receiving a preliminary inquiry should clarify whom the lawyer represents, whether the firm can consider the matter, and any conflict or intake limits before inviting sensitive details. These steps help establish expectations, but a “privileged” label alone cannot create privilege if the legal requirements are absent.
Related Maryland Cases and Authorities
Md. Code, Courts & Judicial Proceedings § 9-108; Md. Rule 19-301.6; Newman v. State, 384 Md. 285, 300–04, 863 A.2d 321 (2004).