The attorney-client privilege, once sacrosanct, is under attack. The privilege is being attacked by clients and lawyers through inadvertence and carelessness. This Post will discuss common ways in which the attorney-client privilege can be waived and what you can do to prevent that from happening.
The attorney-client privilege is generally defined as a private communication between an attorney and client, intended to be confidential, for the purpose of obtaining or receiving legal advice. Not every communication between attorney and client is privileged. For example, when the client forwards a document to his or her attorney for review, the underlying document is generally not considered privileged. Otherwise, all a client would have to do, in order to invoke the privilege, would be to transmit numerous documents to counsel. Courts have held that the underlying documents are not privileged in those circumstances.
There are numerous ways, however, in which individuals can waive the attorney-client privilege through inadvertence. Here is a sample of things to watch out for.
1. Unintentional Copying of Third Parties.
The attorney-client privilege covers communications between the attorney and the client only. Accordingly, when a party is copied on an email, who is not either the client, somebody who works for the client, the lawyer, or someone who works for the lawyer, it can raise questions as to whether the attorney-client privilege was waived. Accordingly, care should be taken in order to make certain that only the lawyer, the client, or their respective employees are included in email correspondence.
When lawyers write to opposing in email correspondence they should be careful not to directly copy their own clients on that correspondence. The client may not realize that opposing counsel is copied on the service list of an email. Accordingly, there have been instances in which a client hits “reply all” and sends what would otherwise be attorney-client privileged correspondence to opposing counsel. This is bad for a host of reasons which should be obvious but, essentially, it gives the other side an opportunity to learn the private thoughts of the client or the lawyer. Then it is often hard to put the cat back into the bag.
2. Why “Reply All” is Dangerous.
As it turns out, in Microsoft Outlook, the most popular email program, the “Reply” key, and the “ReplyAll” key, are right next to one another. Accordingly, care should be taken when either the lawyer, or the client, responds to an email to make certain that only the intended recipients receive the communication. If individuals outside of the email chain receive the communication, it could be determined by a court to have been a waiver of the attorney-client privilege.
Unintentional disclosure can be determined to be a waiver by the Court. However, courts routinely analyze the facts and circumstances surrounding the transmission of the email to determine whether a waiver was intended. Making this determination can often be a time-consuming and expensive process that could eat up substantial resources in connection with ongoing litigation. Resources are certainly better spent in advancing the case rather than defending claims of a privilege waiver.
3. When You Receive the Privileged Communication
Many clients jump for joy when their lawyer receives a privileged communication from the other side which was not intended for them. The client, however, is not required to follow the rules of the Bar unless the client also happens to be a lawyer. Lawyers, however, are obligated to return the communication immediately to the sender and destroy all copies unless there is some reasonable argument which can be made that the information was sent to the lawyer intentionally. This can be hard to explain to the client but that is most often the only remedy available.
There are certain kinds of confidentiality and other agreements which provide for “claw back” provisions. This type of contract provision provides that, in the event that an attorney-client privileged communication is inadvertently disclosed, the disclosing party has the right to get it back. While these contracts may be helpful, in cases involving a voluminous document production, it is not ideal to disclose privileged information, send it to the other side, and then be forced to retrieve it.
Like most things, the best approach to avoid inadvertent disclosure of privileged information is prevention. Be careful to make certain that you know who is reading your emails and who is sending them to you.