Keeping communication between an attorney and their client confidential is an important part of an attorney-client relationship. This is known as “attorney-client privilege,” and the exact definition and inclusions can vary depending on the state.

When working with a lawyer, it’s important that you know the limitations and exceptions of this privilege. Below is a guide to understanding attorney-client privilege in Virginia, including what it covers, what it doesn’t, and what role it plays in estate planning conversations.

What is attorney-client privilege?

Attorney-client privilege is a client’s legal right to disclose confidential information without fear that the attorney will share that information with third parties. In other words, when a client invokes attorney-client privilege, it is meant to prevent their legal representative from disclosing certain personal details. This allows clients to feel more comfortable sharing details about their situations/cases so the attorney can better guide and represent them.

What is covered under attorney-client privilege in Virginia?

Under Rule 1.6 in the Virginia State Bar Professional Guidelines, in Virginia, attorney-client privilege covers any information a client deems confidential, such as information that could embarrass or harm them in any way. Unless the client provides explicit consent to disclose certain pieces of information, their attorney must respect the client’s wishes to keep their confidential communications private.

However, it’s important to understand that not all communications between an attorney and their client are considered “privileged” and confidential.

What are exceptions to attorney-client privilege in Virginia?

While attorney-client privilege does cover a great deal of information, there are some notable exceptions when it is necessary/mandatory for a lawyer to reveal information in Virginia, as briefly mentioned above. The exceptions to attorney-client privilege in Virginia, according to Rule 1.6 in the Virginia State Bar Professional Guidelines, allow attorneys to share confidential information for the following reasons:

• To comply with the law or court order.
• To establish a claim or defense on their behalf when in a conflict with the client.
• To establish a defense against a criminal charge or a claim against the lawyer.
• To respond to allegations regarding the lawyer’s representation of the client.
• To prevent death or substantial bodily harm.
• To participate in a law office management assistance program or other private programs.
• To protect the client’s interests in the event of the representing lawyer’s death, disability, incapacity, or incompetence.
• For office management purposes, provided to a trust agency.
• If the information demonstrates the client perpetuated fraud against a third party related to the subject of representation.
• If the client intends to commit a crime that might result in reasonably certain death or substantial bodily harm or substantial injury to another’s property.
• If the information is about the misconduct of another attorney.

Why does attorney-client privilege matter in estate planning cases?

Attorney-client privilege is an important part of working with professional representation and counsel in all legal matters, including estate planning. Understandably, you may not wish for everyone to know your private plans for your estate as you are making them, as this information can cause fights or tension among family members who may feel they are “entitled” to certain assets.

If you invoke attorney-client privilege during discussions with an estate planning attorney and ask them to keep information confidential, they are generally obligated to do so. However, if you authorize your attorney to have otherwise privileged communications with third parties, such as spouses or children who are the beneficiaries of the estate, this waives your attorney-client privilege.

Additionally, the “testamentary exception” to attorney-client privilege usually comes into play during probate cases after the death of the testator, particularly if the estate is being challenged by its heirs. In these cases, it is implied that the decedent would want their counsel to disclose any privileged communications that support their true wishes, which may have been expressed to their attorney during their lifetime.

Are you searching for a Virginia estate planning attorney you can trust who understands and values the importance of attorney-client privilege? The Law Office of Patricia E. Tichenor has been serving Northern Virginia residents for over 20 years to help them create Wills, trusts, and other estate planning tools. Contact us today or schedule a free consultation to discover how we can help you.