Attorney - Client Privilege
The Attorney - Client Privilege applies in judicial proceedings in which the attorney is either a witness or is required to produce evidence regarding the client. Only the client can allow his/her attorney to disclose the substance of their communications. This is often referred to as the client waiving his/her privilege. The purpose of this privilege is to allow open, candid communications between the attorney and client. However, only attorney-client communications which were intended to be confidential are protected under this privilege. That means that if the client disclosed the communication to anyone else, that communication is no longer protected and can be disclosed to your former spouse through the legal process. To be confidential, the communication must not be intended to be disclosed to another person, other than the persons who provide legal services with your attorney, such as the attorney’s associates or other staff. . Certain communications between the client and attorney will be kept confidential between them UNLESS: • another person, who is not the client or attorney, is present during the communication, such as a family member or friend who attends a meeting between the attorney and client; • the attorney and client are aware that their communication is taking place within earshot of another person; an eavesdropper is not a breach of confidentiality because the disclosure was not intended; • client discloses the communication to another person who is not his/her attorney or attorney’s staff; this includes forwarding the attorney’s or client’s emails to friends or family members; • communication was made for committing or furthering a crime, fraud or other tort (civil action); this includes presenting false evidence or information on a financial statement. Common Mistakes that allow your spouse or spouse’s attorney to obtain attorney-client privileged communications include: 1. Use of an employer’s email for the client and attorney communications. The employer owns the email address and your spouse can subpoena these records from the employer, read them and use them in litigation. 2. The client emails his/her attorney and copies (aka “cc or bcc") or forwards the email to another person, such as a friend. This effectively eliminates the privilege and allows anyone, including your former spouse and his/her attorney, to read these emails and question you about them. One example is if your attorney emails you with or without a document attachment and you forward that email to a friend. Your action in allowing another person to read the otherwise privileged email has eliminated your privilege to confidentiality and thus created an exposure for you. Now this email can be viewed by anyone in your legal action, including your spouse and his/her attorney. In summary, taking reasonable steps to protect your attorney-client communications will not only ensure that you are benefitting from uncompromised legal representation, but will keep the legal process on course without the added litigation that often sidetracks a case and adds to expenses.