Typically, lawyers and clients appreciate that their conversations and communications for the purpose of facilitating legal advice are protected by disclosure. However, the attorney-client privilege can be subject to waiver when the lawyer or client acts inconsistently with the desire to maintain privilege.
Because many lawyers (and their clients) continue to work remotely at least in part, or may travel frequently for work, there can be risk to the privilege created by careless treatment of privileged materials when outside the office. However, by being aware of the confines of the privilege, the risks thereto, and how to avoid such risks, lawyers and clients alike can take steps to reduce the likelihood that their privileged communications will be subject to waiver.
The attorney-client privilege is sacrosanct. An attorney’s duties and obligations to a client are supreme such that the attorney is generally prohibited from disclosing the confidences obtained pursuant to the attorney-client relationship and must safeguard them.
The attorney-client privilege protects communications and information exchanged between a client and lawyer for the purpose of legal advice and/or legal representation. The privilege is narrowly construed and does not protect facts and information that are available from other sources. For example, it generally does not protect information that has been made known to others outside the attorney-client relationship or information that may be obtained from public records or a lay witness. It also does not protect advice that is considered business advice instead of legal advice.
Another primary risk to the attorney-client privilege occurs when a party to the privilege waives that privilege. Waiver can occur in many different contexts, including when the client puts the privilege at issue by suing a lawyer for legal malpractice or relying on the advice of counsel (in some circumstances). Waiver can also occur when a party to the privilege acts inconsistently with the desire to maintain privilege, whether by including a third party to an otherwise-privileged conversation or by disclosing privileged advice to third parties. An agent of a client, such as the client’s lawyer, can also risk waiving privilege by disclosing privileged information or materials outside the attorney-client relationship.
Once the privilege has been waived, especially when it occurs through the intentional conduct of a party to that privilege, the genie cannot be put back in the bottle, so to speak. For this reason, it is critical that clients, attorneys, and their staff take steps and be proactive to protect privileged information to maintain its confidentiality.
Some of these issues have come to the forefront lately because of a decision from the U.S. District Court for the Northern District of California. In Fourth Dimension Software v. Der Touristik Deutschland GMBh, the parties were disputing whether a party should be compelled to produce a document that the producing party claimed was privileged. The CEO of the company had received an email containing privileged advice. While on travel, he forwarded the email to a central email address at the hotel where he was staying, with the request: “Please print one copy. I’m waiting at the front desk. Thanks.” As a result, the court found that the CEO had waived the privilege applicable to that email.
The court concluded that forwarding the email to the front desk suggested that the CEO did not intend for the email to be confidential: any member of the hotel staff may have had access to the email, and the email did not contain any confidentiality warnings or other language instructing the front desk employee to delete it after printing. Thus, the court concluded that the CEO did not “reasonably expect[] confidentiality.”
Being aware of the risk to privilege can help lawyers and clients alike reduce the chance that a privileged communication could be disclosed to others. Lawyers can take steps to prevent third parties from participating in privileged communications (subject to certain exceptions, such as agents, experts, or other consultants who may also share in the privilege). To the extent that a third party can participate in a privileged communication without waiving the privilege—such as an expert retained to assist with litigation—the lawyer can take steps to document the protected status of the relationship to avoid waiver.
Lawyers can also be aware of the risks inherent in traveling. Notwithstanding the recent decision finding a waiver of privilege after a privileged email was forwarded to a hotel desk, most practitioners recognize that there is not a blanket per se rule that forbids such conduct. Indeed, the Northern District of California court specifically noted the circumstances present there, including that the CEO did not identify a specific person to print the email (but just forwarded it to a generic email address) and did not ask the recipient to avoid reading the text and to delete the email after printing. Taking steps like that could support an argument down the road that the lawyer or client acted consistently with the desire to maintain or protect the privilege.
Lawyers can take steps to ensure that they do not let their guard down. Be aware while traveling and in public places: Is a third party in a position to overhear a privileged conversation or review a privileged document? Be cautious in a rideshare, elevator, or plane where bystanders could obtain information that is otherwise privileged. Sometimes it is not practical to implement a total ban on phone calls or discussions about client work while in a rideshare. However, any calls can be handled while wearing headphones, instead of on speaker, to help reduce the risk that the entire conversation could be overheard. Lawyers who travel frequently could consider using a thin privacy shield that can be placed on a laptop screen to allow the lawyer to review critical materials while preventing seatmates or other travelers from reviewing the privileged information on the screen.
Lawyers may also face risks when discussing privileged or confidential matters in courthouses: lawyers may mistakenly believe that because most people present are handling their own legal matters, they can be less careful about discussing privileged information than they otherwise would be.
By being aware of the potential risk for waiver, lawyers and clients can take steps to maintain the privilege.
