Social Media and the Attorney-Client Privilege: Waiving Your Privilege – Be Forewarned and Use Common Sense!

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Last week I attended a brown-bag lunch meeting conducted by the Baltimore City Bar Association entitled “Ethical Considerations for Social Networking for Lawyers.” (Yes, you cynics – we do have ethics – most of us do at least.)

As the crowd gathered in the bar library, I was somewhat fascinated by the demographics of the group attending. Many of the attendees were from my generation and beyond. No, I’m not going to make it easy, you can click on the ‘About Brian Nash‘ link on our blog page and figure out my age. Let’s put it this way – I’m not just out of law school.

Initially I was impressed that the older folks even knew what ‘social media’ meant. Well, it turns out many of them have a different definition than we Tweeps, Friends and Followers. Guess they thought it had to do with advertising in the Sears, Roebuck & Co. catalog. (Boy, I hope they’re not reading this! – chances are they are not since it would require a computer.)

Let’s get down to the subject at hand. One of the topics that surfaced during the discussion was the issue of whether or not a client could be found to have waived the attorney-client privilege by communicating with their friends, followers and/or connections on social media networks. Further time was devoted to how ‘those-in-the-know’ have been dealing with this potential nightmarish issue. I want to share some of the group’s thoughts and some of my own on further reflection. My hope is that these ‘tips, tricks and warnings’ will prove to be of some help – not only the public as clients but to my fellow lawyers, who may not have considered these issues before.

The Attorney-Client Privilege:

Let me start by giving the requisite disclaimer: No, you are not my client because we are Friends on Facebook or following each other on Twitter or you are reading this blog. No, this is not legal advice. That’s the short version.

What is this privilege? I could quote Black’s Law Dictionary, but in the spirit of the internet, here’s what version 1.0 and 2.0 of the cyberspace’s bible (read: Wikipedia) has to say:

The attorney-client privilege is one of the oldest recognized privileges for confidential communications. The United States Supreme Court has stated that, by assuring confidentiality, the privilege encourages clients to make “full and frank” disclosures to their attorneys, who are then better able to provide candid advice and effective representation.

So how could a tweet, a posting or a comment potentially waive such a sacred and revered protection?

While what constitutes a waiver can at times vary from jurisdiction to jurisdiction and certainly from one fact pattern to another, there are some common principles of law that seem to apply.

  • the disclosure must be voluntary and inconsistent with the confidential nature of the attorney-client relationship.
  • the disclosure of the communication with one’s attorney by a client has been made to “unnecessary third parties.”

While law libraries are filled with cases interpreting and ruling on issues of waiver of the privilege, these two elements (intentional disclosure to an unnecessary third party) are sufficient to frame the issue for our discussion.

Does voluntary mean ‘intentional’ – or put another way: “Geez, I didn’t mean to do that.” The short answer (albeit being overly simplistic) is “no, not necessarily.” One of the central issues is – was the disclosure voluntary. Some courts and legal writers suggest that if the disclosure is “inadvertent” (therefore, not voluntary) that this is not a waiver of the privilege. Well, as with most things in the law, there is a laundry list of factors that can be considered to determine if a defense of inadvertent will withstand a challenge to waiver. Some of these might be as follows:

  • the reasonableness (a favorite legal word that can mean anything to anyone) of the precautions taken to prevent inadvertent disclosure
  • the number of inadvertent disclosures
  • the extent of disclosure
  • the delay and measures taken to rectify the disclosure

Well what if you didn’t intend it – or so you say? First of all, I’m not quite sure I want to be standing in front of a judge arguing that when you broadcast a communication you had with your lawyer on Facebook, Twitter or whatever other networking site you live on, you really didn’t intend to type what you typed and then hit ‘enter.’

Can there also be an implied waiver? – another meaningful legal term that keeps all of us lawyers in business. Without getting into a dissertation (more the subject of a law review article) on what constitutes an implied waiver, suffice it to say that this can occur when the client places the communication with their lawyer which goes to the heart of the controversy.

Intent (just like reasonable) generally speaking is one of those fuzzy terms that breeds litigation. For purposes of this article, let’s just focus on whether you intended to put this disclosure out there for your friends and followers. Was the topic you were communicating to your friends/followers (i.e. more than likely defined as “unnecessary third parties”) a confidential communication you had with your lawyer or maybe with your lawyer’s staff?

If it meets these two tests, you will have a difficult if not impossible hurdle to overcome in defending a claim by the opposing lawyer that you waived the attorney-client privilege.

You have now been warned – don’t do it! I know the devil made  your fingers fly over the keyboard when you told your 482 friends about what your lawyer just told you –  about how your case is progressing, or key information your lawyer just discovered, or even your lawyer’s brilliant strategy for getting you a top dollar settlement in your case. The “devil defense” is probably not going to work.

The same goes for lawyers. First of all, the privilege is not the lawyer’s; it belongs in modern jurisprudence to the client. I fully realize that you are just dying to share with your network of legal eagles your most recent brilliant strategy that even Clarence Darrow would never have thought of; however, if you reveal the strategy of a client’s case on such a public forum and it is discovered, you can probably expect a letter from your local attorney grievance commission.

While there are a host of related issues that I will be writing about in the future (e.g. tips and tricks for lawyers during the intake process to identify social media platforms your clients are frequenting, notifications in your fee agreements, and the like), I leave you with one final piece of advice (free at that!!): DON’T DO IT! Keep your communications with your lawyer (clients) off the public social media platforms.

I’m sure you are confident that your user name is so ingenious – LegalBoy528AZ  or imgonnaberichsoon – that you will never get caught. You type away figuring that you’re smarter than any dumb opposing lawyer. Trust me – you don’t want to make that assumption. In fact, in a future blog, I’ll discuss court rulings on this topic of discovery of social media data that may surprise you  – and not in a good way.

To borrow a catchphrase from the TV show Hill Street Blues – “Let’s be safe out there!” I might also add – “Let’s be smart our there!”

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6 Responses to “Social Media and the Attorney-Client Privilege: Waiving Your Privilege – Be Forewarned and Use Common Sense!”

  1. Lucy Potter Says:

    Great article!

  2. Kristin Rueber Says:

    This post is a great reminder to everyone. Google, Bing or whatever search engine one is using, is an easy way to find anyone and anything one has said or is saying. The “socialmediasphere” is here to stay. Ramifications of your actions must be thought out beforehand. When posting online to forums, blogs or amongst friends on social media sites, remember that your thoughts should add value to a conversation. Give yourself a common-sense check (1. Re-read what you’ve written before hitting enter/send and 2. Count to 30 before sending/hitting enter).

    Thanks Nash & Associates!

    • Brian Nash Says:

      Kristin

      First of all, appreciate your taking the time to read my post and to then comment. Means a lot!

      What was fascinating at the lunch conference was the admission by our bar counsel (who was one of the presenters) that it will take some time for the law to catch-up to the fast pace of social media. That being said, the consensus concern was regarding the issue of waiver of attorney-client. Before too much time passed on my thoughts, I wanted to spread the word. It may seem somewhat obvious to lawyers, but apparently, it is not obvious to clients. Keep an eye out for similar topics.

      Again, thanks for your time and comments.
      Brian

  3. Judy Dunn Says:

    Brian,

    What a “hot topic” you have addressed here. In our rush to be “authentic,” sometimes we reveal too much on a social media site and, once you click that submit button, whoosh, it’s gone.

    “The devil made me do it.” Ha! Will have to remember that one. Oh, that’s right. You said it doesn’t work that great as a defense. : -)

    Seriously, your advice is well-taken. I think anytime you leave a paper trail, or should I say, e-trail, your well-meaning off-handed comments can come back to haunt you. (At the very minimum, its’ easy to take a comment out of context.)

    Thanks for making me think.

  4. Brian Nash Says:

    Judy

    Thanks for adding so much to the conversation.

    What is also amazing to me is that some people – in today’s e-social society want to share every event and thought they have on the internet. Kristin Rueber said it well in her comment – information is now just a click away. How hard is it for a lawyer to sit at the computer and do a search on people?

    There’s already a veritable gold mine of information out there on all of us. Why run the risk of waiving one of the most important privileges of confidentiality that still exists in this country- attorney-client? It makes no sense at all.

    As you’ll see when I address this topic again in a different manner, we have built-in devices at the firm to ask and confirm who’s on what social networks. We hate being surprised – luckily so far so good!

    Thanks for the comments – most appreciated.

    Brian

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