In Part III of this series I offer the next of my guiding observations as you consider consultations with legal counsel:
2. Once you’ve got the attorney-client privilege, take care to avoid losing it through “waiver”.
While in Part II I stated that applying this privilege to a specific situation can be extremely complex — losing this privilege can be really easy. It’s called “waiver”.
How waiver works: Client discloses (all or some) contents of a client-lawyer consultation to a party whose participation is not within the scope of lawyer-client communications otherwise protected by the privilege.
Simple example: Client engages attorney for legal advice and lawyer gives legal advice. In other words, lawyer learns facts from client, client seeks legal advice, and lawyer advises client, in “confidence”.
So far so good. Other things being equal (again, this privilege is extremely complex in its terms and application) — the privilege may apply.
Then … there’s communication about all or some of contents of that client-lawyer consultation with someone who happens to be outside the scope of lawyer-client communications protected by the privilege:
- The client casually shares all or some of the contents of the lawyer-client consultation with a friend over coffee.
- Or an executive of the client puts such contents in an e-mail and sends that e-mail to other individuals in the company.
- Or the client’s CEO shares such contents with her spouse.
- Or the lawyer makes one of these kinds of mistakes.
You get the idea. “Loose lips sink ….” The privilege may have been waived.
But the attorney-client privilege can be waived even without unintended, thoughtless mistakes:
In Part I I cited a high-profile case in which the presiding federal judge stated a standard definition of the attorney-client privilege. He went on to rule that the attorney-client privilege applied in that case.
But the judge then ruled that the client had lost the privilege when it shared, “a significant portion of a confidential communication [thereby] waiving the privilege”.
In the context of a sex assault scandal, Baylor University had engaged Pepper Hamilton LLP (here and here) — a nationally prominent law firm — “to conduct an independent and external review of Baylor University’s institutional responses to Title IX and related compliance issues through the lens of specific cases”.
After the law firm had conducted the “review”, Baylor’s Board of Regents publicly issued a 13-page “Findings of Fact” summary, and publicly released Pepper Hamilton’s 10-page “Recommendations” document.
The judge ruled that the privilege had been waived by these two releases (and other facts not vital to this point):
“It is enough that the university selectively disclosed confidential attorney-client communications publicly to warrant a finding that it waived the attorney-client privilege with respect to those communications as a whole.”
The judge seemed to say that Baylor had assumed a have-your-cake-and-eat-it posture on the maintenance of confidentiality required for the attorney-client privilege to apply:
“Would it be fair to allow Baylor to protect remaining undisclosed details regarding the Pepper Hamilton investigation when it intentionally, publicly, and selectively released certain details of the investigations, including attorney-client communications?”
Please bear in mind my DISCLAIMER for this publication. Nothing in my blog — including this three-part series — is intended as legal advice or to be the start of an attorney-client relationship.