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Criminal Defendant’s Survival Guide: Communicating with Your Attorney

Communicating honestly with your attorney is critical to your defense. It’s important to expose the skeletons in the closet that will help your attorney prepare your case. Be advised, everything you tell your attorney during your meetings are privileged and confidential. Your attorney is not allowed to reveal your confidential communications. No one can force you or the attorney to reveal the content of any discussion that’s subject to the privilege. The privilege extends to everyone associated with the defense team. Confidentiality will hold if there’s no third-party present when you communicate with your attorney.

You will also break the privilege if you reveal matters discussed in the attorney meetings with other people in a separate discussion—this includes your spouse. Sometimes clients will ask family members or friends to serve as their agent when they can’t communicate directly with their attorney. This typically occurs when the client is incarcerated, unable to communicate for themselves, or simply desires the trusted agent be involved in the process. When a client request I speak with someone other than them, I require the client sign a waiver. The waiver explains the attorney-client privilege and memorializes the client’s desire that I communicate their confidential information to another person. The waiver protects my firm and protects the client. The waiver lists the specific individuals I’m allowed to communicate with regarding the case. Here’s the catch – the attorney-client privilege DOES NOT extend to the agents listed on the waiver. These individuals are not bound by confidentiality and may be called to testify against the defendant, as applicable. I always advise against sharing information with anyone except the lawyer and the defense team. Keep the following tips in mind:

  1. Do not discuss your charges or the facts of your case with anyone other than your lawyer;

  2. If you don’t want family members and friends subpoenaed to testify against you, don’t share confidential information with them;

  3. If your friends and family ask about your case, refuse to answer questions. In doing so, be polite and explain that your attorney has advised you not to discuss the matter with anyone.

  4. If you’re represented by counsel, never attempt to communicate with the judge, prosecutor, or any adverse witnesses during pretrial, trial, or prior to any plea, conviction, or sentencing (this includes direct or indirect communication, emails, phone calls, letters, etc.). Clients often make incriminating statements when they get the urge to communicate something to the judge or prosecutor without their attorney. These statements can later be used against them at trial or at the time of sentencing.

  5. Advise your family and friends to not communicate with the judge, the prosecutor, or an adverse witness, unless ordered to do so. Letters, emails, and statements providing support or requesting leniency are appropriate, but only after the defendant is convicted of something. Prior to conviction, everything you or your family say to the court and prosecutor should be conveyed through your attorney.

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