Is it when the attorney gets paid? Can attorney client privilege exist even if the clients payments are inarears? When exactly is the moment when the privilege comes into existence? If you make an appointment is there this privilege from the moment you start speaking?

How exactly does it work?


2 Answers 2


It starts the moment that an attorney/client relationship is established, and the client communicates any confidential information to the lawyer. This is usually the moment that the lawyer agrees to represent the client.

It may also apply to disclosures made by the client in the course of the lawyer assessing whether s/he will represent that client.

It exists even if the lawyer is never paid, and may not be held hostage against payment. It applies to all information communicated between attorney and client while the relationship is in place, with a few limited exceptions.

Advice on how to commit a crime is not covered. Billing information may not be covered. Information communicated in the presence of a third party is usually not covered. Information that the lawyer is directed to convey to a third party is not covered. Information that was already public is, I believe, not covered.

The client may waive the privilege as to any particular item of information, should the client so choose.

  • 1
    Duties to prospective clients (which can benefit from an attorney-client privilege) are governed mostly by Rule of Professional Conduct 1.18 in essentially all U.S. jurisdictions (which have adopted a uniform numbering system for not perfectly uniform ethical rules for lawyers). americanbar.org/groups/professional_responsibility/publications/… It's also, worth noting that the attorney-client privilege for communications/work during the relationship survives the termination of the attorney-client relationship.
    – ohwilleke
    Nov 23, 2022 at 23:08
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    Is it also possible that a attorney could decide not to represent a potential client and still be held to the privilege? For example a client explains his law problem to the attorney. The attorney realises the client needs a different type of attorney and refers him to the better person for the job.
    – Neil Meyer
    Nov 25, 2022 at 9:40

The Supreme Court has said (Descôteaux et al. v. Mierzwinski, [1982] 1 SCR 860):

In summary, a lawyer’s client is entitled to have all communications made with a view to obtaining legal advice kept confidential. Whether communications are made to the lawyer himself or to employees, and whether they deal with matters of an administrative nature such as financial means or with the actual nature of the legal problem, all information which a person must provide in order to obtain legal advice and which is given in confidence for that purpose enjoys the privileges attached to confidentiality. This confidentiality attaches to all communications made within the framework of the solicitor-client relationship, which arises as soon as the potential client takes the first steps, and consequently even before the formal retainer is established.

While the judgment somewhat conflates the terminology of confidentiality and privilege, these are distinct concepts. Privilege is the right of the client. It is a rule of evidence and has a constitutional dimension that protects against state intrusion. The duty of confidentiality is imposed on practitioners by law society rules. Descôteaux was in context clearly speaking about privilege and has been cited for this point related to privilege in many subsequent cases. See e.g. Maranda v. Richer, 2003 SCC 67 at para. 22.

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    There's a TV/movie trope where the lawyer says: "Give me a dollar. Great, now I'm your attorney." Is that completely imagined, or was it a sensible precaution prior to that 1982 Supreme Court ruling? Nov 24, 2022 at 10:15
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    Note that (at least in my jurisdiction), confidentiality and privilege are not the same thing (albeit they are related). Confidentiality is a duty of a lawyer not to disclose client's information, while privilege is a right to not disclose information when you would otherwise have to (e.g. to the court). The rules differ for each on when they apply, and to what they apply. In E&W, confidentiality applies the minute you have even a prospective client, whereas for privilege to apply there has to be active legal advice / representation related to the data.
    – JBentley
    Nov 24, 2022 at 10:41
  • @SteveJessop No as it let's both the client and the attorney clearly define when the client become a client hence makes it make easyer to prove the relationship. Nov 24, 2022 at 13:54
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    @IanRingrose: In the spirit of Steve's question, if I understand you correctly the actual dollar could still be skipped and replaced with any statement of intent to from the attorney-client relationship, right?
    – Flater
    Nov 25, 2022 at 2:17
  • @Flater Yes but then there is a risk that when questioned the client may not remember the wording that was used and hence a court will question if the client and attorney was telling with truth. It like exchanging engagement rings is both meaningless and makes the meaning of what is said clear to everyone. Nov 25, 2022 at 14:41

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