Are "Private" Communications Really Privileged?

In the internet connected world, it is more difficult than ever to determine what falls beneath the veil of privileged communication. Between email, text, instant messaging, social media, and the rise in cross-border client representation, protecting attorney-client communications has become very complicated. In the Legal Tech News article “Are ‘Private’ Communications Really Privileged?”

Modern technological advances, such as email, have made attorney-client communication much easier. They have also made it easier to inadvertently waive the attorney-client privilege. Distribution protocols, such as forwarding email chains with privileged communication, could negate the attorney client privilege.

Copying an attorney on a communication doesn’t necessarily mean it’s protected, particularly where the communication does not relate to legal advice asked of or given by the attorney or where the attorney is acting as a businessman or negotiator. Statements made by clients on social media can, likewise, waive the attorney-client privilege. And, for the cross-border practitioner, understanding when the attorney-client privilege applies is critical to ensure “private” communications don’t become public.

Ultimately, the client holds the power to determine if communication with their attorney can be disclosed to third-parties. The rule of thumb: Communication is only privileged if made in confidence between attorney and client, and relates to legal advice or legal opinions.

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