You can unintentionally ‘waive’ the right and reveal the confidential communications unless you are careful to protect against disclosure—and open the door to having to disclose more related communications.
You can unintentionally ‘waive’ the right and reveal the confidential communications, unless you are careful to protect against disclosure, and open the door to having to disclose more related communications.
Many individuals have learned of “privileged communication between attorney and client” and may even have a reasonable understanding of what that entails. But a lack of knowledge of how it functions can lead to mistakes that can make the contact no longer private.
In general, the “privilege of attorney-client” ensures that any details that you share with your lawyer, or that your lawyer shares with you, is completely confidential. “Having the privilege gives you the ability to refuse to disclose and tell your attorney not to disclose a “confidential contact. This makes it easier for you to talk openly with your lawyer without fear that what you say will be leaked or used against you.
However, not everything relevant to your attorney is covered. When you go to see an attorney and pay the attorney for the visit, for example, the fact that you saw the attorney, the date of the visit, and even how much you paid are all likely to be revealed and not privileged communications.
But almost definitely, what you said to the solicitor, and what the attorney said to you, is privileged and shielded from publication. If they are solely between you and the solicitor, the same goes for written correspondence between you and the attorney, including letters, e-mails and messages.
And this is where it can get tricky and dangerous: unless you are careful to protect against disclosure, you can unintentionally “waive” the protection and reveal the confidential communications and open the door to revealing more similar communications.
One of the most common ways this occurs is by sending an e-mail requesting analysis of a legal dispute when you meet with your lawyer. You are backed up by your attorney’s e-mails and cautions about the potential vulnerability in certain aspects of your case. So far, so strong that they are obviously privileged.
Just what did you do?
You have certainly waived the attorney-client privilege (and expressed the vulnerability of your role in the process) as to that e-mail exchange, and you may have opened the door to sharing other, similar correspondence with your attorney as well. This can be devastating.
To prevent violating your client-attorney privilege, when dealing with your lawyer, follow these rules:
Never copy any third party for any correspondence between you and your attorney, unless the privilege (such as being your co-owner or co-employee with a “need-to-know” position) specifically also protects them.
Never forward any email to someone except you and your attorney unless the attorney has expressly agreed to do so.
Avoid e-mail or text strings that can mix privileged and non-privileged communications. Where possible, it’s easier to send a new e-mail or text without any strings.
If you have some question as to whether a message is supposed to be privileged, before doing something about it, consult with your solicitor to make sure the privilege is not going to be waived.
Be aware: While there is an attorney-client contact privilege, there is no such privilege for most other professionals, like your CPA, your financial advisor or your banker, to interact. If it is appropriate to provide both of them with confidential details, consult with your lawyer to ensure that there is no chance of inadvertent waiver of the privilege.