Be Mindful What You Tweet
Social Media and Attorney-Client Privilege: Be Mindful What You Tweet
Attorneys have a professional responsibility to their clients in regards to the confidentiality of communications. The attorney-client privilege is meant to allow a client to speak with candor to his/her counsel and allow the attorney to explore all avenues of a case. As part of our retainer agreement we have clients sign a document to have them understand the privilege and ways of compromising their right of confidentiality.
As robust and time-honored as the attorney-client privilege is, it is not immune to being waived. If information is discussed with third-party individuals or disclosed publicly, the attorney-client privilege is waived. Breaking the privilege can be as simple as telling a friend in person about your consultation with your attorney. If you tell a friend that my attorney told me I have a good case, you may receive x dollars you may have waived the privilege. Telling your spouse will not waive the privilege.But it also can mean discussing the case with a friend via text message and, likewise, by posting information to Facebook or Twitter about your legal issues. Providing third parties with information about your case waives the attorney-client privilege and can be detrimental to your case. Publicly disclosed information becomes fair game for the opposition.
With so much information available by only a simple web search, you should also be mindful of the type of information you distribute publicly. Not only can public disclosure waive attorney-client privilege, but public information is free information – for the other side. If you are tweeting, posting on LinkedIn, or other Social Media the facts, circumstances and details of your case, the opposing side will likely find it and investigate it. Depending on what you disclose, that information could be damaging to your case. E-mails and other electronic communications with parties other than your attorney can also be discoverable by the opposing side. What this means is that opposing counsel can not only request these communications, but might even have a right to review them if they directly relate to the circumstances of your case. There are plenty of good reasons you don't want your private correspondence made available publicly but if you are facing a serious legal matter, the stakes are all the higher. It is important that both you and your attorney are able to work in confidence to try to achieve the best outcome.
The law has expanded the waiver of the attorney client privilege. In years past the privilege could be waived to only the communication that was sent or communicated to the third party. Today courts tend to apply the waiver to all communications involving the case. For example you say something about what your attorney advised you to a third party and you add that I going to get every penny out of party who harmed me. Those statements you do not want a judge or a jury to hear what is motivating you in the case. Worse are statements that you made casually stated to a third person and deviate from what you have said at the trial. These statements may result in your losing your case or compromising the outcome.
Another issue of which you should be mindful is the attorney-client privilege and your work e-mail account. You are not in private possession of your work e-mail. Ultimately, it belongs to your employer. You may have forgotten that your employer required you to sign a statement in which you have agreed that your employer owns your email account and that will result as a communication to a third party and it results in the waiver of the attorney client privilege. A number of courts in various jurisdictions have ruled that there is no attorney-client privilege where the client was sending and receiving e-mail via a work e-mail address. Especially if you are involved in a legal matter involving your employer, you can expect your employer to examine your work e-mail for anything that could be helpful to their case. Exchanging e-mails with your attorney on your work email account is the equivalent of sharing that information with a third party.
Fred Antenberg is an attorney in Columbia, Maryland who handles Family Law issues in Howard County, Maryland and surrounding counties. Call Fred at 410730-4404.