Three’s A Crowd: Waiver of the Attorney-Client Privilege

As discussed in a prior issue of Legal News (September 2014), the attorney-client privilege protects communications between a client and his or her attorney from disclosure. The classic formulation of the attorney-client privilege endorsed by the Massachusetts Supreme Judicial Court is where legal advice of any kind is sought from a professional legal advisor in his capacity. Wherein the communications relating to that purpose made in confidence by the client are permanently protected from disclosure unless the client waives the privilege. The privilege exists not only to protect the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. So, what does it take to lose this extremely important and valuable privilege? An easy way to effectively waive the privilege, as one recent Superior Court case illustrates, is simply to share the information with others, even those closely involved in the case that have similar interests.

Waiver of Attorney-Client Privilege

In that case the plaintiffs, a brother and sister who were minority shareholders in a closely-held (ie. family owned) corporation, challenged the transfer of stock. During discovery, the defendant corporation sought 44 emails between the plaintiffs and their legal counsel. Relying on attorney-client privilege, the plaintiffs refused to disclose the emails and the defendants filed a motion to compel their production. In allowing the defendant’s motion, the trial court judge concluded that the plaintiffs had waived the attorney-client privilege when they voluntarily shared the emails with their brother, also a minority shareholder who had been brought into the action as a necessary party defendant.

 

Must Seek Advice of Assistance from Attorney

The judge rejected the plaintiffs’ argument that the brother had an “implied attorney-client relationship” with the plaintiffs’ attorney. The court noted that an attorney-client relationship may be implied when: (1) a person seeks advice or assistance from an attorney; (2) the advice or assistance pertains to matters within the attorney’s professional competence; and (3) the attorney expressly or impliedly agrees to provide or actually provides advice or assistance. The judge found that the plaintiffs failed to meet the first requirement because they were unable to demonstrate that the brother ever sought advice or assistance from the attorney. The judge continued that even if the brother somehow relied upon the plaintiffs’ attorney to protect his interest, it would not establish an implied attorney-client relationship in the absence of evidence that the brother actively sought the attorney’s advice or assistance.

The case stands as a cautionary example to consider the consequences of sharing information that you have confided to or discussed privately with an attorney, even with those close to the case. Doing so could cause you to waive your attorney-client privilege without intending to and without even realizing that you did.


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