Choosing a Lawyer

Elizabeth Shieldkret
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Choosing a Lawyer

When you hire a lawyer, you retain a representative with an ethical duty to advocate zealously on your behalf. Your lawyer should follow your instructions and act in your best interest. This duty does not extend to lying for you or helping you to commit or further a crime. Your lawyer is also an advisor, helping you determine your best interest in light of often confusing and conflicting information.

There are many factors to consider when choosing a lawyer. You want a lawyer who is knowledgeable and experienced in the area of your legal question and has enough time to give your matter the consideration it deserves. You also need to find someone you feel comfortable with.

What is Attorney-Client Privilege?

This is meant as a general discussion of attorney-client privilege. The application of the privilege may differ from one jurisdiction to another. Ask your lawyer about the privilege and make sure you understand the rules that apply to your situation.

In order to get effective assistance from your lawyer, you need to be able to tell your lawyer confidential information. This is information you do not want anyone else to know, especially the other side in a dispute or negotiation. If you and your lawyer follow certain guidelines, your communications (and some other communications your lawyer makes to further her representation of you) will be covered by a privilege: the other side cannot compel you or your attorney to reveal the content of the communication.

The attorney-client privilege applies when:

(1) the asserted holder of the privilege is or sought to become a client;
(2) the person to whom the communication was made
- (a) is a member of the bar of a court, or his subordinate and
- (b) in connection with this communication is acting as a lawyer;
(3) the communication relates to a fact of which the attorney was informed
- (a) by his client
- (b) without the presence of strangers
- (c) for the purpose of securing primarily either
  - (i) an opinion on law or
  - (ii) legal services or
  - (iii) assistance in some legal proceeding, and not
- (d) for the purpose of committing a crime or tort; and
(4) the privilege has been
- (a) claimed and
- (b) not waived by the client.

United States v. United Shoe Machinery Corporation, 89 F.Supp 357, 358 (D. Mass.1950).

Under (1), communications with an attorney you contacted about a matter may be privileged even if you do not retain the services of that attorney. Subpart (2)(b) refers to an attorney acting as a lawyer. Sometimes lawyers give business advice to clients and such communications may not be covered by the privilege. When the client is a company, the communication may be shared with employees without being waived.

As stated above, you or your attorney cannot be compelled to reveal the content of a privileged communication. You may be required to reveal such information as:

the date and place of the privileged communication
from whom and to whom the communication was made
the general subject matter of the communication (for example, request for legal advice re trademark infringement)
the duration of the communication (for example, the length of the meeting or the number of pages of a document)
any other person present when the communication was made
the type of document containing the communication (such as memo or letter) and anyone who received the document

The arbiter of privileged is the judge or magistrate in your case.

Protecting the Attorney-Client Privilege

The attorney-client privilege is not absolute; it can be waived. Sometimes you will want to waive the privilege because it is in your interest. Usually however, you do not want to waive the privilege. Therefore you and your lawyer should follow some basic rules to be sure the privilege is not inadvertently waived. These are just guidelines. If you have specific questions, ask your attorney.

Keep communications with your attorney confidential.

Do not show papers from your attorney to others (unless the papers are just copies of publicly available documents such as government filings or court pleadings which have already been filed.) Do not reveal confidential information to your attorney if there are others listening. Try to hold conversations with your counsel in a private room or on a secure telephone line. In New York State communications made through unencrypted e-mail are not so insecure as to waive the privilege (CPLR 4547), but your state may be different. When transmitting confidential communications to your attorney, mark them as confidential and subject to attorney-client privilege. Do not tell third parties the advice your lawyer gave you.

Before answering any question at a deposition, hearing or trial, be sure you are not about to reveal the content of a privileged communication. If you are not sure, state that you have a question about privilege.

What is Conflicts Checking?

Because your attorney has a duty to represent your interests, she cannot also represent the interests of anyone who may be in an adversarial position to you. An attorney cannot represent clients who have a conflict of interest. (There are some exceptions to this rule.) Therefore, before creating an attorney-client relationship, I must check to be sure handling your matter will not conflict with the interests of any other client. This is called conflicts checking. For that reason, I must ask some questions of you before I can agree to undertake any representation. When filling out your intake sheet, please be as specific as possible about other parties who may be affected by your matter. Even if I do not represent you, I do not share this information with any entity for marketing or other purposes. I will only reveal it if ordered to by a Judge. Still, you should understand that at the conflicts checking stage, we may not yet have an attorney-client relationship. Please tell me about your matter in general terms, without revealing confidential information.

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