When Can Attorney-Client Privilege Be Waived?
Attorney-client privilege can be waived when a client voluntarily reveals a confidential communication, shares it with an unnecessary third party, relies on legal advice as part of a claim or defense, or fails to protect privileged information. The exact effect depends on the facts and whether federal or state law applies.
The privilege encourages honest communication between clients and lawyers. In general, the attorney-client privilege protects your communications with a lawyer when they are confidential and made to obtain or provide legal advice. Because confidentiality is central to the privilege, sharing protected communications can create a serious risk of waiver.
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Understanding Attorney-Client Privilege
The attorney-client privilege protects confidential communications between a lawyer and a client concerning legal advice or legal services. It can cover conversations, emails, letters, text messages, and other communications when the required conditions are met. The privilege generally belongs to the client, who has the authority to assert or waive it. State laws may impose different waiver rules too.
The privilege generally protects communications rather than the underlying facts. A person cannot make a relevant fact confidential simply by telling that fact to an attorney. The protection focuses on the confidential exchange made for the purpose of obtaining or providing legal advice.
Common Ways Privilege Can Be Waived
Voluntary Disclosure to a Third Party
The most common way privilege is waived is through voluntary disclosure. If a client forwards a privileged email to a friend, posts legal advice online, or discusses the advice with an unrelated person, the client may have given up some or all of the protection.
The circumstances matter because a third party may sometimes have a legitimate role in the legal representation. However, unnecessary disclosure can weaken the argument that the communication was intended to remain confidential.
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Relying on Legal Advice
A waiver can also occur when a client relies on an attorney’s advice as part of a legal claim or defense. For example, a defendant might argue that they took an action because their lawyer told them it was lawful.
A court may determine that related communications should be disclosed because the client has placed the legal advice directly at issue. Simply mentioning that someone consulted an attorney does not necessarily create a complete waiver.
Sharing Confidential Information
Clients should be careful when sharing legal communications with family members, coworkers, friends, or others not involved in the representation. Forwarding an attorney’s email or providing another person with confidential legal documents can create a waiver issue.
The American Bar Association notes that disclosure of confidential attorney-client communications to third parties can affect the privilege, although the result depends on the circumstances and applicable law.
Inadvertent Disclosure
An accidental disclosure does not always destroy the attorney-client privilege. Federal Rule of Evidence 502 protects certain inadvertent disclosures when reasonable steps were taken to prevent the disclosure and to promptly correct the mistake.
For example, accidentally sending a privileged document to the wrong recipient does not automatically mean that all related communications lose protection. The response after discovering the mistake can also be important.
The Crime-Fraud Exception
Attorney-client privilege does not protect communications made to help someone commit or plan a crime or fraud. This limitation is commonly known as the crime-fraud exception.
The exception does not mean that an attorney-client relationship disappears whenever a client is accused of wrongdoing. Instead, it focuses on communications used to further a crime or fraud, rather than communications seeking legal advice about past conduct or potential legal consequences.
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Privilege in Business Communications
Not every conversation involving an attorney is privileged. A communication generally may be connected to obtaining or providing legal advice rather than simply discussing ordinary business matters.
This issue can be especially important for companies communicating with in-house counsel. Copying an attorney on an email does not automatically make the message privileged if its primary purpose is business rather than legal advice.
The U.S. Supreme Court has recognized attorney-client protection for qualifying corporate communications, but the protection depends on the nature and purpose of the communication.
Key Takeaways
- The attorney-client privilege generally protects confidential communications made for the purpose of obtaining legal advice.
- Voluntarily sharing privileged communications can result in a waiver.
- Relying on an attorney’s advice in a claim or defense can create waiver issues.
- An accidental disclosure does not always destroy privilege.
- Communications made to further a crime or fraud generally are not protected.
- Copying an attorney on a business communication does not automatically make it privileged.
- Promptly addressing an accidental disclosure can help preserve available protections.
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