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By D. Brian Reider

Most people have heard of the “attorney-client privileged communication” and may even have a fair idea of what that means. But a lack of understanding about how it works can lead to errors that can render the communication no longer confidential.

In general, the “attorney-client privilege” means certain information you share with your attorney, or which your attorney shares with you, is absolutely confidential. Having the privilege gives you the ability to refuse to divulge a “confidential communication” and to tell your attorney not to divulge it. This allows you to speak freely with your attorney without fear that what you say will be revealed — or used against you.

Not everything to do with your attorney is protected, however. For example, if you go see an attorney and pay the attorney for the visit, the fact that you visited the attorney, the date of the visit and even how much you paid are likely all not privileged communications and would have to be disclosed.

But what you said to the attorney, and what the attorney said to you, is almost certainly privileged and protected from disclosure. The same goes for written communications between you and the attorney including letters, e-mails and texts — if they are exclusively between you and the attorney.

And here is where it can get tricky and dangerous: Unless you are careful to protect against disclosure, you may inadvertently “waive” the privilege and disclose the confidential communications — and open the door to having to disclose more, related communications.

One of the most common ways this happens is when you consult with your attorney by sending an e-mail seeking analysis of a legal issue. Your attorney e-mails you back their opinion and also adds cautions about the possible weakness of some parts of your case. So far, so good – clearly these are privileged.

But then, to bolster your arguments with the party you are having a dispute with, you forward your attorney’s e-mail to the other side with a note saying, “As you can see, our attorney feels we are clearly in the right!”

What have you just done?

You have certainly waived the attorney-client privilege as to that e-mail exchange (and shared the weakness of your position in the process), and you may have opened the door to having to reveal other, related communications with your attorney as well. This can be catastrophic.

To avoid breaking down your client-attorney privilege, follow these rules when communicating with your lawyer:

  • Never copy any third party with any communication between you and your attorney, unless they are clearly also covered by the privilege (such as by being your co-owner or co-employee with a “need-to-know” position).
  • Never forward any communications between you and your attorney to anyone unless the attorney has expressly OK’d doing that.
  • Avoid e-mail or text strings where privileged and nonprivileged communications may be together. It’s better to send a new e-mail or text without any string when possible.
  • If you have any doubt as to whether a communication is intended to be privileged, check with your attorney before doing anything with it to be sure the privilege is not going to be waived.
  • Be aware: While there is an attorney-client communication privilege, no such privilege exists for communications between most other professionals, including your CPA, your financial adviser or your banker. If there is a need to provide confidential information to any of them, check with your attorney to be sure that there is no risk of inadvertent waiver of the privilege.

* This article first appeared in The Press-Enterprise on Mar. 20, 2018. Republished with permission.

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