Communicating openly and freely with your lawyer, and employees in your lawyer’s office, is one of the keys to success in any legal matter.
You must be able to do so so that nothing – even the most sensitive topics – are overlooked when you are seeking legal advice and providing the information for that purpose. This allows us to fully evaluate your case, and to give you the best possible advice based on a complete portrait of the facts. To encourage this kind of wide-open discussion between us, both state and federal laws provide absolute protection against disclosure of attorney-client communications. No one can demand to know what you’ve told me. No court can order it. This “privileged” status that the law extends to communications between clients and lawyers, known in fact as the attorney-client privilege, is an impenetrable shield around these communications. And it covers all forms of communication, verbal and written, between you and your lawyer and lawyer’s staff. The attorney-client privilege is a powerful tool for you, because there is no reason to fear that if you disclose something that word will get out.
But there’s an exception to this rule, and that’s what leads me to write about the topic.
The exception to this rule is if you voluntarily disclose attorney-client communications, your protection can vanish – immediately and forever. It’s like popping a balloon. Once the protective wrapping is gone, the air is out, and it is not coming back. That is a good way to think of the attorney-client privilege. Once you give away the protection by voluntarily disclosing it, it may be lost forever. You may then be then forced to disclose many or all your highly-confidential discussions and communications with us. And that, in nearly all situations, is a disastrous development. The reason is precisely because the communications are usually so frank and candid, they will reveal an incredible range of otherwise off-limits information and details, about every aspect of your case and about personal, family and personal information.
So it is important for clients to avoid discussing our communications, thoughts and plans to anyone else. It is never appropriate, and it always poses the risk of causing great damage to the case.
Here’s a short but useful list of “never do’s.” I’ve listed many of the most common things to avoid, but there are always more. This is not intended to be an exclusive list. Rather, it is intended to provide examples, and to give some frame of reference about how the attorney-client privilege can be lost.
- Never repeat our comments in conversations with family, friends and coworkers. Each can be subpoenaed and forced to disclose what you said (or could disclose it later if your relationship sours)
- Never repeat our comments in written communications, such as in emails, memos and letters (e.g., such as in emails to your boss that say, “My lawyer says I don’t have to come to the meeting,” or “Based on legal advice I have received, I am not able to discuss my complaint at this time.”)
- Never discuss, during your own deposition, anything we’ve told you (e.g., “Well, I wrote the memo because my lawyer said….” or, “Well, I refused the position based on my lawyer’s advice”).
- Never disclose conversations you’ve had with anyone in our law firm, whether they are a lawyer or not. The attorney-client privilege extends to any employee in our firm.
- Never have others (who aren’t clients themselves) listen in on our calls or meetings. Unless some other privilege protects the conversation, the third party’s presence itself eliminates any privilege.
- Never forward our emails or letters to others, or show them to others. Avoid “cc’s” and “bcc’s” to us where possible. Most company IT departments can easily see who is being blind-copied on your emails.
- Never give guidance to other witnesses and quote us in the process (e.g., by saying to a coworker, “Well, the company’s lawyer is going to ask you about it. My lawyer says that supporting witnesses would be helpful here, and that…..”)
- Never use your work computer to write us, and never give us an email address to write to you where the email is accessible by your employer or stored on its systems. The law about whether you have any right or expectation of privacy on work computers is still developing. Don’t do it.
- Don’t email us from your company-owned smartphone or other device, or from devices belonging to others. Those communications may be accessible by your employer.
- Don’t invite us to leave voicemails on phone systems belonging to others. Let us know if the number you’ve given us belongs to someone else.
- Don’t leave our communications (e.g., emails or letters) where others can read them. Take steps to protect them.
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