Prevent Clients from Waiving the Attorney-Client Privilege

Recent developments in the law of attorney-client privilege presents new pitfalls for inadvertent waiver by your clients. A large part of clients’ trust comes from the protection of lawyers’ duty of confidentiality and ability to assert the attorney-client privilege. But are your clients inadvertently waiving that privilege and making incriminating information discoverable?

Blog Posts and Chat Conversations Can Waive Attorney-Client Privilege

The Ethical Quandary reported on a case out of the Northern District of California, Lenz v. Universal Music Corp., et al, where the court affirmed a magistrate judge’s order directing the plaintiff to disclose communications with her attorney. The court found that Lenz had gone to chat rooms and posted on blogs about discussions with her attorney, and thus had waived the attorney-client privilege.

Are Your Clients Unknowingly Waiving?

In addition to blog posts and chat room discussions, the court held that one statement to a reporter waived Lenz’s attorney-client privilege. Lenz told a reporter that “[i]n discussing the situation with one of my lawyers, we came to the conclusion that I did not infringe the copyright and eventually we decided to file this lawsuit.” The court held that the statement reflected Lenz’s knowledge regarding a key element in the case.

If this statement is sufficient to waive the privilege, take that logic one step further. A Twitter update like “Lawyer says state has no case! Def getting off! :-)” could fall into the same category as Lenz’s. A company could post an update to their Facebook page explaining a recent lawsuit and attempting to calm clients’ fears: “After consulting with legal counsel, it is clear that Company Y’s legal actions are purely malicious and they have no valid claim against us.” Under the Rules of Professional Conduct and the logic in Lentz, such a post could cause big problems.

What Can A Lawyer Do?

A good attorney sees problems coming from around the corner. But seeing the potential problems coming is only half the battle of being a good attorney. The other half is trying to prevent them. Most attorneys advise clients that any conversations between them are confidential and privileged. That is fine for an initial consultation. But as the representation evolves, explain to the client the importance of their secrecy in addition to your own. Recommend that they refrain from talking about the case online in any way. Ask that they clear any press releases or statements to investors through you, so you can determine if there is the possibility of an inadvertent waiver.

In the end, communication with your client is one of the strongest tools you have. Use it often. Let them know about the risks in order to avoid problems down the line.

(photo: http://commons.wikimedia.org/wiki/File:US_Navy_041127-N-3019M-004_A_family_member_of_a_Sailor_waves_goodbye_to_her_father_as_he_departs_aboard_an_C-40A_Clipper.jpg)

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  • http://ethicsmaven.com/ Eric Cooperstein

    If a company decides to waive its attorney-client privilege by posting something on its Facebook page, what Rules of Professional Conduct are implicated that would cause “big problems?” I don’t see how it is necessarily the lawyer’s problem if the client decides to waive its privilege.

    As a practical matter, it is unlikely that corporate constituents are going to remember to contact the attorney every time they send an e-mail or issue some press release. It is part of the difficulty of representing corporations.

    • http://joshcamson.com Josh Camson

      Eric,

      I agree. That is one of the problems with representing a corporation. The problem I was referring to is when the corporation inadvertently waives something, then blames the lawyer. It’s unlikely that the lawyer has committed an ethics violation, but extremely likely that the client will be displeased.