If you are facing criminal charges, there may be details you would rather not tell anyone. You may be worried that admitting something embarrassing, damaging, or potentially illegal to your lawyer could make your situation worse.
In most cases, the opposite is true. Your criminal defense attorney is better able to help you when they know what actually happened—including facts that may not be favorable to you. Attorney-client privilege and a lawyer’s broader duty of confidentiality exist so clients can speak candidly and receive meaningful legal advice.
Criminal defense lawyers routinely hear difficult facts. Telling your lawyer about something that already happened is exactly what legal representation is for.
There are limited exceptions to confidentiality and privilege, but those exceptions generally do not mean that admitting past criminal conduct to your defense attorney gives the attorney permission to reveal what you said.
What Is Attorney-Client Privilege?
Attorney-client privilege protects certain confidential communications between a lawyer and client when those communications are made for the purpose of obtaining or providing legal advice. In a criminal case, it generally prevents the government or another party from forcing your attorney to reveal what you privately discussed. The purpose of the privilege is to make it possible for clients to speak candidly with their lawyers without worrying that those conversations will later be used against them.
Tennessee has recognized attorney-client privilege for more than two centuries. The protection is reflected in Tennessee Code § 23-3-105, which addresses communications between attorneys and people who consult them professionally.
The basic idea is straightforward: a defense lawyer cannot give accurate advice or prepare effectively if the client feels pressure to hide important facts.
That is why honesty with your attorney is generally one of the most useful things you can do for your defense.
What Is the Difference Between Attorney-Client Privilege and Confidentiality?
Attorney-client privilege and attorney confidentiality are related protections. Privilege primarily protects certain communications from being forced into evidence or disclosed in legal proceedings. A lawyer’s duty of confidentiality is broader and generally prevents a Tennessee attorney from revealing information relating to the representation of a client unless the client authorizes it or a specific exception applies.
In ordinary conversation, people often use “attorney-client privilege” to refer to both protections.
The distinction matters legally, but the practical takeaway for a client is simpler: your lawyer is generally obligated to treat information about your case as confidential.
Under Tennessee Rule of Professional Conduct 1.6, a lawyer generally may not reveal information relating to a client’s representation except in specifically defined circumstances.
That protection allows clients to talk openly about subjects they may not feel comfortable discussing with anyone else.
Is an Initial Consultation With a Lawyer Confidential?
A genuine consultation about potentially hiring a lawyer can receive protection even if you never sign a fee agreement or ultimately hire that attorney. Tennessee specifically recognizes duties to prospective clients, which means you should generally be able to discuss your situation candidly while determining whether a lawyer is the right person to represent you.
Under Tennessee Rule of Professional Conduct 1.18, a person who consults with a lawyer about potentially forming an attorney-client relationship is considered a prospective client.
Even if no attorney-client relationship ultimately forms, the lawyer generally cannot simply use or reveal information learned during that consultation.
This protection is important because an attorney often needs to know the difficult parts of a case before they can give you a realistic assessment of your situation.
If you are considering speaking with one of our Knoxville criminal defense attorneys, you should not feel that you need to present a cleaned-up version of what happened.
Should I Tell My Criminal Defense Lawyer Everything?
You should generally tell your criminal defense lawyer the facts that could matter to your case, including facts that you believe make you look bad. Your attorney is usually in a better position to deal with a difficult fact they know about in advance than a fact they discover unexpectedly from a police report, witness, video, prosecutor, or piece of evidence.
One of the biggest mistakes a client can make is withholding information because they are worried their attorney will judge them.
Criminal defense attorneys represent people accused of serious offenses every day. Their job is to understand the facts, identify legal issues, evaluate the evidence, and determine how the case should be handled.
Information your attorney may need to know can include:
- What you said to police before, during, or after an arrest;
- Whether there are text messages, photographs, videos, or social media posts related to the allegation;
- Which witnesses were present;
- Whether alcohol or drugs were involved;
- Whether police searched you, your vehicle, your phone, or your home;
- Whether there are facts the police may not yet know;
- Whether another person involved has a reason to give an inaccurate account; and
- Whether you have prior cases or other circumstances that could affect the current charge.
A fact that seems disastrous to you may have a different legal significance than you expect.
The sooner your attorney knows about it, the sooner they can determine what it actually means for your case.
Should I Tell My Lawyer If I Am Guilty?
Yes. You should not give your criminal defense attorney a false version of what happened because you believe the lawyer can only represent you if you maintain your innocence. Defense attorneys represent people who acknowledge committing offenses, people who deny the allegations, and people whose cases fall somewhere in between. A private admission to your lawyer does not automatically determine the legal outcome of your case.
The State still has the burden of proving every required element of a criminal charge beyond a reasonable doubt using admissible evidence. What you tell your lawyer privately is different from what the State can prove in court, and guilt is ultimately determined through the legal process—not through a private conversation with your attorney.
Even when a client acknowledges certain conduct, there may still be important legal questions involving:
- Whether police conducted a lawful stop, search, or seizure;
- Whether statements can legally be used against you;
- Whether witnesses can reliably identify what occurred;
- Whether prosecutors can prove the required intent;
- Whether forensic, digital, blood, breath, or other evidence is reliable;
- Whether the alleged conduct actually satisfies the elements of the charged offense;
- Whether charges can be reduced or dismissed; and
- What negotiated or sentencing outcomes may be available.
A private conversation with your attorney is not a guilty plea.
It gives the attorney the information necessary to determine what defenses, legal issues, negotiations, or strategic options may exist.
Why Is It Better for My Lawyer to Know the Bad Facts Early?
A difficult fact is usually easier for a defense attorney to address when they learn about it from you rather than from the prosecutor. Early disclosure gives your lawyer time to investigate the issue, understand its legal significance, compare it with the State’s evidence, and decide how it should affect the defense strategy. Surprises can limit those options.
For example, suppose you know there is an incriminating text message, a damaging witness, a surveillance video, or a statement you made to police. Hiding that information does not make the evidence disappear.
Instead, it can prevent your attorney from preparing for it.
Your lawyer may be able to challenge whether evidence was legally obtained, whether it is admissible, whether it has been interpreted correctly, or whether it proves what the prosecution claims it proves.
Those questions are much easier to evaluate when the attorney knows about the evidence in advance.
Are There Limits to Attorney-Client Privilege?
Yes, but the limits are relatively specific. Attorney-client privilege generally protects confidential communications made for legal advice. Problems can arise when communications are intentionally shared with unnecessary third parties, when the client later discloses the lawyer’s advice to other people, or when someone seeks legal assistance to carry out future criminal or fraudulent conduct. These situations are different from privately discussing past conduct with a defense attorney.
The most important distinction for someone facing criminal charges is this: telling your attorney about something that already happened so the attorney can defend you is fundamentally different from asking an attorney to help you commit a future crime.
Can Someone Else Sit in on a Meeting With My Lawyer?
Sometimes, but it is best to ask the attorney first.
Attorney-client privilege depends in part on the communication being confidential. Tennessee courts have recognized that involving unnecessary third parties can sometimes affect whether a conversation remains privileged.
That does not mean no one else can ever participate in a meeting. In some circumstances, another person’s presence may be appropriate or necessary.
If you would like a spouse, parent, friend, or other person to attend a meeting, mention it to your lawyer first so the attorney can advise you about the best way to proceed.
Should I Share My Lawyer’s Advice With Other People?
Usually, it is safer not to share confidential attorney communications without first asking your lawyer.
For example, forwarding an email from your attorney to a friend or posting a screenshot of legal advice online could create questions about whether the communication is still confidential.
Tennessee courts recognize that a client can waive privilege by voluntarily disclosing protected communications to third parties.
You do not need to become paranoid about discussing your case. The practical rule is simply to keep your lawyer’s advice private unless your attorney tells you otherwise.
Does Attorney-Client Privilege End When My Case Ends?
No. Protected attorney-client communications do not simply become public when a criminal case ends, when you hire another attorney, or when the lawyer stops representing you. The protection can continue after the representation is over. Lawyers also retain ongoing confidentiality duties regarding information learned during a former representation.
That continued protection is essential. People would be far less willing to speak honestly with their attorneys if everything they disclosed automatically became fair game when the case concluded.
The same general principle applies when a prospective client speaks with a lawyer but ultimately decides to hire someone else.
You should still avoid unnecessarily sharing privileged communications yourself, because clients can waive privilege through voluntary disclosure.
Talk to a Knoxville Criminal Defense Attorney About Your Case
If you are facing a criminal accusation, it is important to tell your defense attorney the full story—including the parts that are embarrassing, complicated, or potentially incriminating. Your lawyer needs accurate information to evaluate the evidence, identify legal problems with the State’s case, and determine what options may be available to you.
At Barnes & Fersten, our Knoxville criminal defense lawyers represent people facing criminal charges throughout Knoxville and East Tennessee. Our job is not to judge clients for what they tell us. It is to understand what happened, evaluate what the State can actually prove, identify constitutional or evidentiary issues, and determine how to approach the case.
If there is a fact you have been hesitant to disclose because you are afraid it will hurt your case, discuss that concern privately with your attorney rather than deciding on your own that the information should be withheld.
You can schedule a consultation with Barnes & Fersten by filling out or contact form or by calling 865-805-5703 to discuss your situation with a Knoxville criminal defense attorney.
This article provides general information about Tennessee law and is not legal advice for any specific case. Whether attorney-client privilege or another confidentiality protection applies can depend on the particular facts and circumstances.
Attorney At Law, Managing Partner
Brandon D. Fersten is an esteemed Knoxville attorney practicing DUI, criminal defense, and juvenile law. Known for his empathetic approach and commitment to his clients, he brings a record of favorable case outcomes including dismissals and not guilty verdicts at jury trials resulting in Brandon being recognized as one of the “Top 40 Under 40” in Criminal Defense, U.S. News’ Best Lawyers: “Ones to Watch,” and Super Lawyers’ “Rising Stars”. Brandon’s professional accolades, combined with his passion for justice, position him as a reliable criminal defense advocate in the East Tennessee legal landscape, including Knox County, Blount County, Sevier County, Loudon County, Roane County, Anderson County, Cumberland County, Hamblen County, Monroe County, and McMinn County.
