When the Privilege Waiver Is Unclear
In the attorney discipline business, privilege waiver is a central issue. When a client files a state bar complaint against his attorney, privilege is waived, subject to nuances. (Of course, isn’t everything in law subject to nuances?) What this amounts to is that you have a right to defend yourself from allegations by a former client.
A Brief Statement of Nuances
Waiver is not necessarily wholesale. If a client has made an issue to the third-party regulator of an attorney’s conduct in his representation of the client, then the client has impliedly waived privilege as to issues related to the conduct he has called into question. That does not mean the client has waived privilege as to every communication he’s ever had with his lawyer. For example, if you represent a client on multiple matters, you should be careful to maintain privilege as to any issue or matter not raised in the client’s complaint. Even if you have only worked on one matter, the waiver might extend only to one issue involved in the representation. Be careful.
There are other wrinkles in the privilege analysis as well. But this post is not intended to be an exhaustive treatise on when privilege is waived. Rather, the issue here is what can a lawyer do when faced with a need to defend himself from a former client’s allegations, but he is not sure privilege has been waived?
When Might This Happen?
It might seem like a bar exam or MPRE question to even contemplate that waiver could be unclear. However, it is far more common than you might think. A state bar complaint or malpractice suit are two places a former client can waive privilege. But what about situations where the complaint is not so formal?
Online reviews have become very common, and websites like Avvo and Yelp frequently contain information posted by clients and former clients about an attorney’s services. If a former client posts on your Avvo profile that you did a poor job representing her, can you reply to the review with privileged information? Has privilege been waived?
What if a former client contacts opposing counsel to gripe about you? If there is a lawsuit still pending, has the client waived privilege by complaining to other counsel? What if no lawsuit is pending? Does that make a difference?
First, Ask the Powers That Be
The first and best way to protect yourself if you think privilege might have been waived (and you need to disclose otherwise privileged information to defend yourself) is to ask the authority that is governing the potential disclosure, if there is one. This would be the state bar if you have a state bar complaint, or a court if you are engaged in ongoing litigation.
When No Powers That Be Are Governing
Sometimes you won’t have someone to go ask, such as when a former client has posted a negative review online. Being adverse to a former client is a terrible position to be in, but leaving a negative review uncontested online can be horribly detrimental to business. So, uncomfortable as it might be, one possibility is to go straight to the source — the former client. Confirm in writing that you believe the client has waived privilege by her own actions and that you intend to respond appropriately, perhaps including information that is no longer privileged due to waiver. To be safe, wait for a response before actually disclosing any privileged information. It is likely that such a letter will result in the former client rescinding the negative review rather than affirmatively waiving privilege.
Another possibility is to seek counsel for the specifics of the situation. If a client merely posted that you did a poor job on his representation, he probably did not waive privilege. If, however, he disclosed privileged details of the work and accused you of wrongdoing, waiver is likely effective. So, seek counsel before disclosing anything privileged in defense. The correct answer to the waiver question may lie in state law, where (again) nuances live. For example, waiver might require disclosure of a “significant part” of a privileged communication. Counsel in your jurisdiction can help you navigate the waters to determine whether there is an effective waiver or not.
When You Don’t Get a Satisfactory Answer
If you cannot satisfy yourself that privilege has been waived, protect the information. You won’t hit ethics trouble by maintaining the privilege. If the burden of maintaining privilege is too great, follow the advice above and get a confirmation before you break it. The last thing you should do is break privilege and then discover there’s been no effective waiver. The bell cannot be unrung, and the disciplinary consequences can be severe.
Megan Zavieh focuses her practice exclusively on attorney ethics, providing limited scope representation to attorneys facing disciplinary action, and guidance to practicing attorneys on questions of legal ethics. At age 21, she earned her J.D. from the University of California at Berkeley School of Law. Megan is admitted to practice in California, New York and New Jersey, as well as in Federal District Court and the U.S. Supreme Court. In "On Balance," Megan writes about the issues confronting lawyers in the new world of practicing law. She blogs on ethics at California State Bar Defense and tweets @ZaviehLaw.