How You May Waive Attorney/Client Privilege Without Knowing It
Attorney-client privilege is an important protection necessary to facilitate the relationship between client and attorney and ensure the best possible representation for the client. In order to have the advantage of this privilege, a client must be seeking legal advice from the attorney. At this point, the privilege attaches to the relationship and it does not matter if money has changed hands.
Once the privilege has attached then the attorney cannot disclose any information relating to the representation of the client without informed consent from the client. The attorney/ client privilege protects a variety of information: (1) all information relating to the matter on which the lawyer is representing the client, except information that is “generally known”; (2) any personal information relating to the client that the client would not like to be disclosed is protected; (3) all information learned from the client, and information learned from interviews, documents, photographs, observation, or other sources; and (4) information relating to the representation acquired before the representation begins (such as during a preliminary consultation) and after the representation terminates. Additionally, the privilege protects notes or memoranda that the lawyer creates relating to the matter.
The most important aspect of attorney-client privilege is that the client is the holder of the privilege. This means the client is the only one who can waive the privilege. The attorney-client privilege attaches even after death of the client. The privilege is meant to protect any communication between attorney and client. Clients do need to be aware that there is implied disclosure to confide information with the other attorneys and staff at the law firm. However this disclosure will not waive attorney- client privilege.
There are some times when at attorney can disclose or may be required to disclose confidential client information. First, an attorney may be required to disclose to prevent reasonably certain death or serious bodily harm. Another reason an attorney may have to disclose is to prevent crime or fraud that is reasonably certain to harm other’s property or finance. An attorney may have to disclose to prevent, mitigate, or rectify a reasonably certain substantial property or financial injury to another. Also, an attorney may disclose to obtain ethics advice or to establish a claim or defense on behalf of himself or herself. A court or other laws may order an attorney to breech their privilege to the client. Finally, an attorney may have to disclose to identify and resolve conflicts of interest related to a lawyer’s change of employment.
There are three types of waiver including voluntary, implied, and inadvertent. Voluntary waiver occurs when the client discloses to a third party. This can occur when the client intentionally waives the privilege, abandons the confidentiality, or is not seeking legal advice (communication not made in furtherance of the purpose of privilege). Implied waiver occurs when a client injects the advice of counsel at issue in litigation, reliance on counsel as an affirmative offense, or sues for malpractice. Inadvertent waiver occurs when the opposing party inadvertently discovers confidential information.
There are several exceptions to attorney-client privilege and several ways the client can inadvertently waive the privilege. One such exception is the crime/fraud exception, which occurs if a client uses the lawyer’s advice to commit crime or fraud. Communications are not protected under these circumstances regardless of whether the attorney knew whether or not that was the client’s purpose at the time. A client waives the privilege if he or she discloses otherwise privileged communications to a third party or if a third party is present during the communication between the client and attorney. Both of these circumstances destroy the privilege. The court will view the situation, as the client no longer wants this information to be privileged.
There are several examples of how these disclosures can occur. A client can disclose to a third party by telling someone other than the attorney about the specific information discussed by the client and attorney. This can also occur if a client posts this information on social media. If a client brings another person to a meeting with their attorney, then it is basically guaranteed that anything discussed during that conversation is not confidential. Opposing counsel can subpoena the other person to state in court what was said during that meeting. Another important example is using work email to communicate with your employer. The vast majority of employers require employees to sign paperwork that allows the employers to access and read employees’ email. This means your work email in not private or secure. Fred Antenberg has been practicing law in Howard County, Maryland and in surrounding counties in Central Maryland for over thirty years. Contact Fred for a free initial consultation and for further advice regarding attorney-client privilege by calling 410 730 4404.