How Attorney-Client Privilege Can Impact a Personal Injury Case

You don’t need to be a legal expert to understand attorney-client privilege—it’s a term that pretty much everyone’s familiar with, even if they’ve never needed to consult with a lawyer. Attorney-client privilege is a cornerstone of the legal profession, but how does it apply in a personal injury case?

After all, you’re probably not admitting any wrongdoing to your attorney; your only goal is to recover compensation for your damages. You may be surprised at how attorney-client privilege can impact your accident claim.

A Look at the Different Types of Legal Privilege

Attorney-client privilege is fairly easy to understand; privilege simply means that anything you tell your attorney, including its evidentiary value, can’t be disclosed to any third parties. This includes other attorneys, even if you’re the defendant. Even the court can’t force your attorney to disclose privileged information.

Even though the privilege you share with your attorney is pretty much everyone is at least vaguely familiar with, it’s not the only type recognized by the legal system. Yes, this includes both civil and criminal courts. Various laws, including the 5th Amendment and Texas Rule 504, address the two other types of privilege.

The 5th Amendment applies to your right (privilege) against self-incrimination. This means you have a legal right to not say anything that may implicant you in a crime. Think about movies and TV crime dramas where a witness in court pleads the 5th. Yes, this is legal and a judge can’t force you to say anything that is self-incriminating.

Texas Rule 504 applies to spousal privilege, and all 50 states follow some form of this rule. Spousal privilege means your legal wife or husband can’t be forced to testify against you in court. If you’re wondering about spousal privilege and how it applies to common-law marriages, the statutes are a little vague.

Sometimes it does apply, typically in situations where the state recognizes the common-law marriage. So if you’re planning on using spousal privilege and you’re in a common-law marriage, your best advice is to seek legal counsel to assist you.

Establishing Attorney-Client Privilege in Personal Injury Cases

When you establish attorney-client privilege in a Texas personal injury case, anything you tell your lawyer is private and can’t be disclosed even during discovery. An opposing attorney can’t file a discovery request to obtain privileged information from your lawyer.


So, how do you establish attorney-client privilege? Some individuals may claim the privilege is automatic the second you hand over payment to an attorney. In some instances, this may be true, but personal injury cases are often a little different. This is due to how most personal injury attorneys structure their fees.

Instead of paying a personal injury attorney upfront or even periodically throughout your case, most work on a contingency fee basis. This means that your attorney isn’t paid until you successfully settle your injury case.

Your settlement check typically goes into an escrow account. Your attorney deducts their fees and you receive a check for the remaining amount. This means, you’re not paying upfront but don’t worry you can still establish attorney-client privilege without handing over a single cent.

There are four requirements you must meet to establish attorney-client privilege in a personal injury case, which include:

  1. You exchange information with your attorney
  2. The reason you’re exchanging information with an attorney is to obtain legal advice relating to your personal injury case
  3. You have a reasonable expectation the information you’re disclosing to the attorney will remain confidential
  4. The attorney is acting in their legal capacity during the meeting

Another stipulation to the attorney-client privilege is you must have a reasonable expectation of privacy. For example, meeting with an attorney in their office behind closed doors is a reasonable expectation of privacy.

However, if a third party is present during the meeting, you can’t expect anything you say to remain confidential. This can also apply if you meet with an attorney in a busy restaurant. You can’t expect nearby diners or even your server to not overhear at least parts of your conversation.

Are There Times to Consider Waiving Attorney-Client Privilege in a Personal Injury Claim

Just the thought of waiving attorney-client privilege can have some legal scholars feeling slightly upset. The rule is a cornerstone of the legal profession and is absolutely necessary for attorneys to provide adequate representation. If a client doesn’t feel comfortable disclosing all relevant information to their attorney, it’s often impossible for a lawyer to prepare a case.

While criminal defense attorneys rarely even consider recommending their clients waive their privilege rights, personal injury law is a little different.

Yes, the information you give your attorney can impact your percentage of the blame for the accident causing your injuries. Since Texas is a comparative negligence state, disclosing the details can impact the value of your claim.

Comparative negligence law allows for more than one party to assume a percentage of blame for an accident. If releasing privileged information means you assume more of the blame, your attorney will probably strongly recommend not waiving your rights.


However, there are times when an attorney may recommend releasing at least some privileged information. Sometimes, it can help increase the value of your personal injury claim. An example is if your injuries are affecting your ability to be intimate with your spouse.

It may be potentially embarrassing or uncomfortable and you probably want to keep it between you and your attorney—However, this is also considered a non-economic damage and you may be able to receive additional compensation. If your attorney recommends waiving some of your privilege, it’s usually something you should consider.

Talk to an Attorney About Privilege and Your Rights in a Personal Injury Case

Personal injury cases can indeed be complex, particularly when it comes to determining fault and calculating damages.

Typically, it’s beneficial to keep your conversations with your attorney confidential and protected under attorney-client privilege. However, there might be situations where this privilege could inadvertently reduce the value of your claim.

If you’re considering the possibility of waiving this privilege, it’s crucial to thoroughly discuss all your options with your attorney first. They can provide valuable insights and guide you in making a decision that best protects your interests and maximizes the potential of your claim.