In our practice we see lots of new clients. We are particularly sensitive to the attorney-client privilege issues because many of them communicate with us about employment problems. For employees, it often true that just consulting an attorney may have a negative impact on the employment relationship, if the employer learns of it.
So, on the “Employment Law and Litigation” practice area tab on our website, we make the following suggestion to potential clients: For employees, it often true that just consulting an attorney may have a negative impact on the employment relationship, if the employer learns of it.
Employees should not communicate with Rich Cassidy Law through an employer provided email account, as this may waive the employee’s attorney/client privilege. Call instead for a face to face or video conference.
And yes, we do it in bold, red print. Of course, we still get lots of emails from employees on employer-provided email accounts. As a result, it’s an early counseling issue in our relationships.
Another recurring issue, and one that is not limited to employment clients, is presented by clients who show up with a trusted friend or other support person for their initial conference. As lawyers know, if a third-party is present during an attorney-client communication, the privilege is waived unless that person’s presence is necessary for the conference. It is by no means clear that the courts will recognize the privilege as to communications made in the presence of a friend or support person.[1] Accordingly, we take a conservative approach to this issue and recommend that third parties sit out. We would not want to have to litigate the question of necessity except in clear cases, such as for translators.
The fact that a client wants a trusted friend to be present is not enough to reliably predict that the privilege will be upheld.
It is interesting that, during the pandemic, that this problem seems less common. Of course, almost all our client conferences have been conducted by video conference. We are concerned because we cannot see who is present. The video camera has only a narrow, fixed field of view. Third parties may be lurking off-camera, but within hearing. We think it is prudent to ask. On several occasions we have discovered that there is an additional person present. Usually, but not always, it is a spouse, and we generally do not worry about that. We feel reasonably confident that, since there is a spousal privilege, a court would not find that the presence of a spouse waives the privilege.
Another recurring problem are copies, or blind copies, of emails sent to us by clients. An email sent to the lawyer and copied to third party is not privileged. Worse yet is the client who blind copies to a friend an email sent to you. If you hit reply to respond, your advice goes to the client and to the person who was blind copied on the original email. The result is a likely waiver.
For the same reason, we do not blind copy clients on our emails to opposing counsel or parties. If our client hits “reply to all,” the privilege files out the window. We take an extra moment and separately forward a copy of our email.
It pays to be careful about privilege issues, and to understand that these concepts are foreign to most clients.
Rich
[1] See, e.g., Diamond Resorts U.S. Collection Dev., LLC v. US Consumer Att’ys, P.A., No. 9:18-CV-80311, 2021 WL 505122, at *5 (S.D. Fla. Feb. 11, 2021) (“Since confidentiality is a requirement of the attorney-client privilege, no privilege attaches to a communication made in the presence of a third party, nor to an already-privileged communication that is subsequently disclosed to a third party.”). See also, Berens v. Berens, 247 N.C. App. 12, 20, 785 S.E.2d 733, 740 (2016)(Privilege would attach if third party was a “good friend,” of the client, but would apply if the third party is an agent of the party.).