HOISTED BY YOUR OWN PETARD (How To Waive Your Own Attorney-Client Privilege Without Really Trying)
The attorney-client privilege is a foundation stone upon which our justice system is built. The ability to discuss your legal problems freely and openly with your attorney without anyone being able to compel your attorney or you to disclose the nature of those conversations is, frankly, an important freedom. While much has been written about the obligation of the attorney to protect those confidences, this article focuses on the client’s obligations in order to keep that privilege in place.
You may not realize it, but when you have a conversation with a third party about “my lawyer says”, you are, in fact, running the risk of waiving your attorney-client privilege. Further, insisting on a non-client participating in a meeting with your lawyer may also waive the privilege. Sometimes this is completely appropriate, but remember, when you bring that friend, relative, or non-lawyer advisor into a meeting, there may not be a privilege relative to the matters discussed.
Another way that the privilege can be waived is by asking your attorney to correspond with you on a personal matter at your work email address. Generally speaking, the law recognizes the ownership of your work email as being your employer’s and not yours, although in some states this is not the case. The receipt of personal legal advice through your employer’s email may mean that that email is subject to being disclosed in a lawsuit because the privilege has been waived. Generally, you should instruct your lawyer to email at an address that is a personal account to prevent the possibility of an inadvertent waiver.
Your encounter with your lawyer may be something you want to discuss and that is your right. But sometimes sharing the legal advice you have received is not in your best interest. As I always tell my children, do you know the best way to keep a secret? Don’t tell anyone.