Article
Attorney-client Privilege May Be Unintentionally Waived
The attorney-client relationship is crucial. It allows members to discuss freely a potential legal situation or lawsuit with their counsel without fear that those discussions will be released to opposing counsel or the general public. This privilege may be waived, however, by sharing the protected information or documents with an individual outside of the attorney-client relationship.
If this privilege is waived either intentionally or unintentionally, the documents and conversations may have to be produced to a requesting party, which could be opposing counsel.
Designed to Protect Conversations, Documents
Unless waived, the attorney-client privilege protects conversations and documents shared between an attorney and his or her client from release to all other individuals and forums, including opposing counsel, litigants, the courts and other legal type forums.
The attorney-client privilege exists to encourage clients to confide openly with their counsel.1 Such open and honest communication allows an attorney to represent his or her client more effectively.2
The privilege applies where legal advice is sought from a professional legal adviser in his or her capacity as that person’s lawyer. Communication must be made in confidence by the client with an expectation that it will be kept confidential, unless the client waives confidentiality.3
Waiver of Privilege Can Be Implied
The client’s waiver may be expressed or implied. One way a member may inadvertently waive the privilege is by sharing information protected by the attorney-client privilege with someone outside of that specific attorney-client relationship.
For example, a sheriff receives legal advice via e-mail from an attorney relative to the legality of a proposed course of action on a specific personnel issue. The sheriff, believing other sheriffs would be interested in this information, forwards the attorney’s communication to other county sheriffs.
The other sheriffs are not part of the attorney-client relationship. By forwarding the attorney’s communication, the sheriff may have unintentionally waived the attorney-client privilege regarding that employment situation.
Be Thoughtful About Waiving Attorney-client Privilege
Waiver of the privilege should only be done after consultation with legal counsel regarding the potential ramifications. Therefore, prior to sharing any information or communication provided by legal counsel, the member should discuss the disclosure with that attorney.
Attorney-client Privilege Basics
- Attorney-client privilege allows clients to have conversations with their attorney without fear that the information may have to be disclosed later.
- Clients may waive the privilege.
- Waiver may happen by forwarding information from the attorney to an individual not part of the attorney-client relationship (e.g., constituent, professional association, colleague outside of the organization).
- If the privilege is waived, formerly protected communications may have to be disclosed to third parties (e.g., opposing counsel, the court, constituents, etc.)
- Attorney communications should not be forwarded to a third party without talking with that attorney.
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