“The attorney-client privilege may well be the pivotal element of the modern American lawyer’s professional functions.”
– Geoffrey C. Hazard, Jr., Law Professor (b. 1929 – d. 2018)
This is the attorney-client privilege in a nutshell:
- The secrets you tell your attorney stay secret
Keeping secrets secret is the heart of this long-held privilege. It means that you can tell your lawyer the truth, the whole truth … and your lawyer cannot be compelled to testify against you or disclose confidential information.
To be sure, there’s a rather large exception to the attorney-client privilege, that of the crime-fraud exception. This holds that the privilege doesn’t apply to secrets told for the purpose of committing or concealing a crime or fraud.
But the attorney-client privilege otherwise shrouds the attorney-client relationship in a veil of secrecy. As Yale Law Professor Geoffrey Hazard explained, this includes any information that might be “embarrassing” or “detrimental” to the client.
Hazard wrote, “That doesn’t exclude much.”
How this translates in the context of divorce
The attorney-client privilege generally means the secrets you tell your attorney stay secret, but that doesn’t mean there aren’t others looking to find those secrets. You have a divorce lawyer, but so does your spouse. Both advocates do all they can to represent the best interests of their clients as they work to uncover the facts.
In other words, the good and the bad will inevitably come to light.
People generally want what’s best for themselves and their children. To that end, they may hide, shade, or misconstrue the facts and circumstances. It’s ordinary human nature. You may adamantly believe that a separate bank account or investment fund you had prior to marriage is yours and yours alone. You may in fact be right. And you may consider it wise to withhold this information from your divorce lawyer. After all, if the money in the account is yours, why must others know about it?
Don’t forget: Your spouse also has a divorce lawyer, whose job is to investigate and uncover hidden assets. In all likelihood, your spouse’s lawyer will find it. In turn, this will cause a ripple in the negotiation process – and not necessarily in your favor, even if the money is rightfully yours.
In general, the bigger the ripple, the bigger its effect.
The big picture
In his historical perspective on the attorney-client privilege, Hazard wrote, “It is considered indispensable to the lawyer’s function as advocate on the theory that the advocate can adequately prepare a case only if the client is free to disclose everything, bad as well as good.”
You tell your lawyer everything, not because doing so may ruin or hamper your case, but because it may ruin or hamper your case if you don’t.
