May 06, 2020 Feature

Handling Confidences Carefully

At least in theory, lawyers who ignore warnings to a client’s detriment may be disciplined under Rule 1.6(c) for failing to take reasonable precautions.

Bruce A. Green

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Suppose that during the discovery phase of a lawsuit, you assert that the attorney-client privilege protects documents containing your communications with your client—but the court disagrees. For example, suppose the court finds that a public relations expert attending your meeting with the client, or with whom you shared confidential communications, was not needed to assist you in providing legal services. Therefore, the court concludes that the attorney-client communications were not privileged or that the privilege was waived. May the client blame you for failing to do what was necessary to establish and preserve the privilege? Might you even be at risk of professional discipline for having failed to protect the privilege?

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