It’s normal to wonder what one can safely say to a lawyer in confidence. Someone facing a criminal charge or DUI charge may worry that unless they hire a lawyer with whom they consult, then what has been said is no longer a protected secret.

How safe are my secrets? Can the lawyer reveal anything to the police, mention something to the prosecutor, or otherwise disclose anything said to him or her? Fortunately, the answer to that last question is a reassuring and satisfying “no,” even if the lawyer is merely consulted, and not hired. In other words, there does not need to be a formal attorney-client relationship for the attorney-privilege to attach.

Our firm understands that EVERYTHING communicated to us, either during a consultation, or by a client who has hired us, is a secret that not only deserves protection, but is also legally covered by the attorney-client privilege.

The law is clear: Anything communicated by a client to his or lawyer, or even a by potential client during a consultation with an attorney is strictly confidential. This applies even if the lawyer doesn’t provide any legal advice, and it applies in all 50 states, including Michigan.

This is true even if the confidence is revealed in an electronic communication made to the lawyer or his or her law firm. Part of this is the “work product doctrine,” which allows a lawyer to not have to turn over any legal strategies or notes, but also requires that any privileged information that is part of such work to remain strictly confidential.

All attorney-client communications in which the client discloses privileged information must be held secret. As noted above, the privilege attaches eve if a person is merely consulting with a lawyer and just seeking his or her “take” on their situation.

In the context of a criminal case (or any case, really), the scope of the attorney-client privilege is extraordinarily broad, with only a few, VERY LIMITED exceptions.

What is Attorney-Client Privilege?

The attorney-client privilege is something private. It covers everything someone reveals to a lawyer. Essentially, it protects all attorney-client communications, meaning anything said in furtherance of obtaining legal help, or even if a person is merely consulting with a lawyer to see if he or she can or will help.

In Michigan, the attorney-client privilege is covered by Rule 1.6 of the Michigan Rules of Professional Conduct. As written, MRPC 1.6 provides:

Rule 1.6. Confidentiality of Information.

A. “Confidence” refers to information protected by the client-lawyer privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

B. Except when permitted under paragraph (C), a lawyer shall not knowingly:

• (1) reveal a confidence or secret of a client;
• (2) use a confidence or secret of a client to the disadvantage of the client; or
• (3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.

C. A lawyer may reveal:

• (1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;
• (2) confidences or secrets when permitted or required by these rules, or when required by law or by court order; 18 Last Updated 5/1/2024 Michigan Rules of Professional Conduct
• (3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client’s illegal or fraudulent act in the furtherance of which the lawyer’s services have been used;
• (4) the intention of a client to commit a crime and the information necessary to prevent the crime; and
• (5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer’s employees or associates against an accusation of wrongful conduct.

D. A lawyer shall exercise reasonable care to prevent employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by paragraph (C) through an employee.

Numerous legal opinions have been written about this both by the federal and state court of appeals and supreme court, all basically holding that the privilege is essentially sacred.

What Is NOT Covered by the Attorney-Client Privilege?

Public information, or information that is available to others is usually not covered. Thus, anything that’s obtained through a Freedom of Information Act (FOIA) request would never be privileged. Anything in law enforcement records, while some of it may not be otherwise available to the public, cannot be claimed under the attorney-client privilege.

Any information discovered through a court order is not privileged, unless a lawyer is required to reveal something confidential pursuant to a court order under one of the very few legal exceptions to the attorney-client privilege (see below section, “What is NOT covered by the Attorney-Client Privilege).

Examples Of What Is NOT Protected by Attorney-Client Privilege?

Here are 5 situations that are NOT privileged:

1. Concealing assets or income. A lawyer cannot assist a client in hiding these things from the court or judgment creditors. In a criminal case this would most likely occur to avoid paying restitution. This is rather straightforward.
2. Concealing or destroying evidence. A lawyer may not advise nor assist a client about how to, in any way, hide or get rid of evidence. This requires no further explanation.
3. Suborning perjury. This means to participate with the client is providing false testimony. It is actually a very relevant issue in many criminal and DUI cases, and by far the most likely to arise in the real world. We’ll examine it in more detail below.
4. Witness tampering. A lawyer cannot assist a person in tampering with a witness. Typically, this would involve making threats, trying to “buy” his or her testimony, or otherwise attempting to make a person to be unavailable. This, too, is straightforward enough to need no further explanation.
5. An intention to commit a crime. If the client tells the lawyer that he or she is going to commit a crime, that information is not privileged. This really becomes an issue if the lawyer knows that someone may be harmed by the client’s intended behavior.

As noted above, in # 3, the perjury issue, is the undoubtedly the most common issue/question to arise in a typical criminal or DUI case.

It is very common for someone facing a charge to wonder what happens if they have told the lawyer, either directly or otherwise, that they “did it.”

What the Attorney-Client Privilege Means in Plain English

In simple terms, the attorney-client privilege protects all communications between a lawyer and his or her client. It also protects anything said between a lawyer and a potential client during a consultation, even if the attorney is NOT hired and does not become the person’s legal counsel.

Who Does Attorney-Client Privilege Apply To

The attorney-client privilege also extends to every member of a law firm, including its support staff. That means that if a potential client calls our office to check us out and get our take on a case before deciding who to hire, and the person speaks with one of our legal assistants, everything said in that conversation is strictly confidential and is considered a “privileged communication.”

In fact, the privilege even extends to other professionals used by the lawyer to provide outside help in a case.

The privilege is NOT overridden by a valid subpoena. It is stronger than just about anything in either federal law or state law.

Thus, if a lawyer is defending a client for embezzlement, and the services of an accountant are retained as part of the defense, that account is also subject to the attorney-client privilege.

Generally, Our Law Firm Only Uses Two People

1. A primary substance abuse counselor, and,
2. A secondary substance abuse counselor

We use them to complete the substance use evaluation required in all Michigan driver’s license restoration cases and, when it will be helpful, in DUI cases. Depending on the facts and circumstances, we’ll direct the client to one of them.

Of course, implicit in this is the client’s consent for us to exchange information with these, or any other professionals, all of whom are still bound by the attorney-client privilege.

Everything we disclose to the counselor, and everything disclosed to us is covered under the attorney-client privilege.

How Does Attorney-Client Privilege Apply in Criminal Defense?

To repeat: The attorney-client privilege is very broad, and, in a criminal case, covers just about every confidential communication between the lawyer and client. When a lawyer speaks, whether in court or anywhere else, he or she must always be careful to safeguard the client’s secrets.

It is probably easier to explain this by listing the exceptions. To be clear, there are some exceptions that apply to things like a corporate board of directors and their access to certain information.

In the most famous attorney-client privilege case of Upjohn -vs- The United States 499 US 382 (1981), the U.S. Supreme Court held that any communications between a company’s employees and its lawyers are privileged, and that the confidentiality of the attorney work product doctrine may even cover materials sought by an IRS summons.

However, those aren’t real world situations anyone reading this is likely to face, especially when facing a criminal or DUI charge in a Michigan court.

Therefore, we’ll confine our examination to the kinds of exceptions that someone in those situations could realistically encounter.

These all essentially come down to what’s called the “crime fraud” exception.

Examples Of Real-World Limitation of the Attorney-Client Privilege

Let’s look at a few hypotheticals to understand how this works.

1. Assume Ronnie the Robber tells Larry the Lawyer that he broke into Victor the Victim’s house in Gotham City, Michigan, and stole a very expensive watch. Larry cannot reveal that confidence to anyone, but neither can he have Ronnie takes the witness stand and then ask him if he broke into Victor’s and stole the watch, and say nothing as Ronnie perjures himself by saying “no.”
2. Assume that Larry the Lawyer takes Ronnie the Robber’s case to trial but does not have him testify. Larry is then perfectly free (and is in fact obligated) to cross-examine any witnesses and try to punch holes in their story, even though he knows Ronnie is guilty. Larry cannot call an alibi witness to testify falsely that Ronnie was with him or her when the break-in occurred, but other than presenting lies, he can and must do everything to cast doubt on the prosecution’s case. If Larry the Lawyer can show that the prosecutor’s evidence does not meet the required “proof beyond a reasonable doubt” standard required to convict someone of a crime, then he will have done exactly what a lawyer should do.

What Happens if You Confess to Your Michigan Criminal Defense Lawyer?

People “confess” to lawyers all the time, even without knowing it. Many people will contact a lawyer for something like a DUI or suspended license charge and say something like “I got caught driving drunk,” or “I was arrested for driving while my license was suspended.” Those statements pretty much indicate that the person violated Michigan law somehow.

Here’s the good news: That’s almost certainly NEVER a problem.

Consider the reality in these situations:

1. DUI case – The person is usually caught driving, and the critical issue is the admissibility and reliability of evidence. Nobody is going to take the stand and say, “It wasn’t me driving” or “I was NOT drunk, despite what the chemical test(s) show!”
2. Suspended License or Revoked License charge – What can a person lie about? In fact, what testimony could he or she ever give in one of these situations that would help?

Years ago, the O.J. Simpson trial (then known as “The Trial of the Century”) was the subject of every nightly TV show. Ultimately, O.J. Simpson was acquitted of 2 murder charges, despite DNA evidence, and he never testified in his own defense.

One evening, one of the nation’s top criminal lawyers was asked about how he would normally handle a murder charge.

He began by saying something to the effect that “I never ask a client if he or she did it, and I tell them I don’t want to talk about that, but rather just want to discuss the evidence.”

How Does Confessing To A Crime Affect Our Example Case?

Let’s circle back to our hypothetical with Ronnie, the Robber, and Larry, the Lawyer. The best way for Larry to defend Ronnie is, before anything important is said, to NOT ask if he did it and to further advise him to not say anything on that point.

• Assume that Ronnie complies and DOES NOT tell Larry the Lawyer he that he broke into Victor’s house and stole his watch. In fact, all he does is directly answer the questions put to him by Larry.
• At trial, Larry the Lawyer calls Ronnie the Robber to the stand. Because Larry has no knowledge to the contrary, when he asks Ronnie a question, and even if Ronnie lies in response, that perjury falls on entirely on Ronnie alone, but not one bit on Larry.

In most situations, like a Michigan DUI, Embezzlement, Indecent Exposure or Suspended/Revoked License case, even if a person tells the lawyer he or she “did it,” that won’t make a bit of difference in how the case gets handled, or the potential outcome, either. This is because with extremely few exceptions, the defense plan will NOT involve putting the defendant on the witness stand.

Why Do People Lie to Their Criminal Defense Lawyers?

Let’s begin with this: It is NEVER a good idea to lie to your criminal defense lawyer. As should be clear from the discussion above, it may be best to NOT say certain things unless asked, but it’s always a bad idea to mislead your attorney. Always provide a full disclosure of everything related to your situation to your lawyer when he or she asks.

There are 2 primary reasons people do lie to their lawyers:

1. They are afraid to admit something, or to look bad, or “guilty,” and/or
2. They mistakenly believe that doing so will help their case in some way.

Let’s circle back yet again to our example with Ronnie the Robber. Imagine that, before Larry the Lawyer ever asks him a single question, Ronnie tells Larry, “I’m innocent. I wasn’t even in town when this happened; I was visiting my sister, Truthful Tina, on the other side of the state.”

[To be fair, a good lawyer would verify any such alibi before relying upon it, but for purposes of our discussion here and to keep things simple, we’ll overlook that here, in this example.]

Because he believes Ronnie, Larry rejects several opportunities to work out a plea-bargain, or sentence bargain deal, and sets the matter for trial to fight the charge.

As he’s preparing for that trial, he calls Ronnie’s sister, Truthful Tina, to talk about her testimony. Tina is shocked to hear that Ronnie lied to Larry and is using her as an alibi witness. She tells Larry that she hasn’t seen Ronnie since at least 2 years before the robbery took place.

Not only has Ronnie the Robber left Larry the Lawyer holding the bag, he’s also essentially shot himself in the foot, as well.

The bottom line is that there is never a good reason for a person to lie to his or her criminal defense lawyer – EVER.

Common Misconceptions About Attorney-Client Privilege

Here are 4 of the most common misconceptions about the attorney-client privilege:

1. If I include somebody in my conversation with the lawyer, our discussion is still confidential. It isn’t. With a few very specific exceptions, if you include anyone else (other than someone on the lawyer’s staff, or an outside professional being used by the lawyer to help with your case) in your conversation with your lawyer, the attorney-client privilege is deemed to have been waived. That person you brought in is legally free to disclose anything said.
2. I must hire the lawyer before we can have confidential communications. Anything you say to a lawyer, even in the context of an initial consultation, is protected by the attorney-client privilege.
3. The attorney-client privilege only covers me and my lawyer. The person in a lawyer’s office is bound by the attorney-client privilege. So, too, are other professionals brought in to assist with the defense. This would include other lawyers, accountants, counselors, doctors, investigators, psychologists, or anyone else who may or will help with the case.
4. If I fire the lawyer, the attorney-client privilege disappears. If a lawyer is fired, or withdraws from a case, he or she may not reveal any privileged communications. The privilege NEVER expires, and extends to anything disclosed, including subjects beyond the person’s legal issue(s).

The bottom line is that unless the client does something to waive the privilege, or otherwise does something to trigger one of the very few limited exceptions, EVERYTHING disclosed or said to a lawyer is strictly confidential.

Why Work With Jeffrey Randa and Associates?

First, your secrets are safe with us. We have more than 3 decades of experience successfully defending people from criminal and DUI charges in the Detroit area, meaning Wayne, Oakland, Macomb, and the surrounding counties. We know exactly what to ask, and what NOT to ask.

Whatever you tell us, even as part of an initial consultation about a legal matter, is a privileged communication. My team and I will never divulge the secret of a client or potential client and will treat anything said as confidential information.

Client Testimonials

Jeff Randa and his team made an extremely difficult challenge almost seamless. They were there every step of the way with advice and took care of all the backend work. They were there for me every time I had a question and extremely supportive. Would recommend them to anybody 10/10. Special thanks to Ann, Beth, Jack and Tonya! – Mitchell K.

Awesome people at this Firm. Couldn’t ask for better counsel. They do what they say they are going to do !!! Special thanks to Ann and Beth 😁 – Gregory.

What a great experience at a difficult time in my life. Randa and Associates were true to their word and followed through on every detail to show what a professional and competent law firm they are. Highly recommended. – Doug C.

Attorney Jeff and his team are absolutely amazing! I highly recommend contacting and using their services. They will treat your case with care and support throughout the entire DUI process. I greatly appreciate their expertise and fast responses to any concerns I had. Beth is very kind and helpful as you are going through this process. Every one on the team treats you with respect and wants the best outcome for you. They are the number one, second to none firm. Thank you again. – Talise A.

Attorney Jeff and his team were the best throughout this difficult DUI situation. I would recommend this law office because they will fight on your behalf and they are caring people which made all the difference in going through this DUI. Thanks again for helping us through this life changing experience. – Nicole S.

They did everything right! The experience was professional and never once did I feel that I didn’t know what was going on. – David M.

I wanted to take a moment to express my gratitude for your support and professionalism throughout my driver’s license restoration case. Your expertise and dedication were instrumental in achieving this positive outcome, which will have a significant impact on my life moving forward. Your thorough understanding of the law, attention to detail, and strategic approach to my case were truly impressive. I appreciate the time you took to explain the process clearly and keep me informed at every stage. Your patience and reassurance helped ease my concerns during what was a stressful time for me. The result we achieved together – the restoration of my driver’s license – is invaluable to me. I couldn’t have done this without your skillful representation. Thank you again for your hard work and commitment to my case. Your professionalism and expertise have made a real difference in my life, and I am grateful. – B. Davis.

Honesty, Clarity, and Discretion in Your Criminal Defense

You cannot overestimate the value of being protected. My team and I will safeguard your freedom, interests, and record while we fully protect your confidentiality, as well. You can rest easy knowing we have your back.

Ultimately, success in a criminal or DUI case is best measured by what does NOT happen to you.

When you hire our firm, you can be confident that you’ll get the best outcome possible. Specifically, that means avoiding as many of the legal penalties and negative consequences as possible.

No lawyer can do more, and we’ll never do less.

If you’re facing a criminal or DUI charge, be a wise consumer and read around. Then, call around. You can learn a lot by speaking with a live person, and that’s exactly what you’ll get when you contact our office. We offer a free consultation – done over the phone, right when you call – that is ALWAYS CONFIDENTIAL. My team and I are very friendly people who will be glad to answer your questions and help you understand your situation.

We can be reached Monday through Friday, from 8:30 AM until 5:00 PM, at either 248-986-9700, or 586-465-1980.