Keeping Secrets: The Attorney Client Privilege in NC
When someone is served with a subpoena to testify in court, he or she generally must go to the courthouse and testify in open court at the risk of being held in contempt of court, i.e., incarcerated, for failure to do so. And the witness must answer all of the questions from the attorneys while on the witness stand. There are only a handful of times when the court says a witness can’t be forced to testify, or when a witness may testify only about certain things. One of these times is when you tell your lawyer something that qualifies as attorney-client privilege (ACP). A privilege is a special right, the ability to avoid testifying, or testifying about a certain subject.
North Carolina Privilege
North Carolina has privileges for communications with physicians, nurses, clergy, psychologists, school counselors, licensed marital and family therapists, social workers, counselors, optometrists, peer support group counselors, agents of rape crisis centers and domestic violence programs and limited protection for journalists and spouses. [1] One case explains that the ACP is “. . . an established rule . . . that confidential communications made to an attorney in his professional capacity by his client are privileged, and the attorney cannot be compelled to testify to them unless his client consents.” [2]
The Policy Behind It
ACP fosters crucial trust between the client and the attorney. It is a time-honored tradition that encourages people to be honest with their attorneys so that the attorney can effectively protect that person’s civil rights. Otherwise, the attorney would potentially have to testify about conversations with his or her client. This is particularly important when a client who is accused of a crime faces the threat of incarceration or even death if there are pending capital murder charges.
What’s Required to be ACP?
There are five requirements for communication to be protected by ACP. [3] The first is that the attorney must have the relationship of attorney and client when the communication is made. If you are talking with your cousin, who happens to be an attorney, about your other cousin’s new boyfriend, that is not a privileged communication. Second, the conversation must be made in confidence. Generally, the only people who can be present during the conversation are the attorney and the client. Someone else’s presence while communicating with your attorney can break ACP. The third requirement is that the conversation has to be about the issue you are seeking legal advice about in the first place.
Fourth, the conversation must take place in the course of giving or seeking legal advice for a proper purpose to qualify for ACP. In other words, the client needs to be seeking legal advice. If you see your lawyer at your daughter’s basketball game, and you have a discussion about the game, politics, the coach or other similar topic, there is no ACP. There’s no requirement for a lawsuit to be filed to have the benefit of ACP. But the proper purpose means the ACP doesn’t apply for a client and lawyer who are discussing things for an improper or illegal purpose, such as helping the client commit fraud. Fifth, only the client can waive ACP, and to keep it, he or she must not have waived the right to it. A client who starts testifying about the conversation he or she had with the attorney “opens the door” to the subject, and ACP has been waived.
How Broad is ACP?
In certain cases of privilege, such as doctor-patient privilege, a judge in North Carolina can decide to over-rule the privilege if it is “necessary to a proper administration of justice.” An example of this would be when medical records for substance abuse are admitted over the objection of the parent in a child custody case so that the judge can use the records to determine a parent’s sobriety. However, a judge cannot overrule the ACP. If the situation meets the definition of the ACP, that privilege is absolute. It also applies to both civil and criminal matters. Although the client is the person who has the right to assert ACP, an attorney has an independent legal obligation to use the ACP on the behalf of the client. Even after a client dies, the attorney is still required to assert the ACP on his or her behalf.
[1] NC Gen. Stat. §8-53 to §8-57.1.
[2] Dobias v. White, 240 N.C. 680, 684 (1954).
[3] State v. Murvin, 304 NC 523 (1981).
