Privilege: The Third Party Factor

By Vicki Voisin, ACP

‘Privilege’ is a rule of evidence that protects against the forced disclosure of specific communications between the attorney and the client that were made for the purpose of legal representation. If a paralegal acts as an agent of his or her principal attorney in these communications, attorney-client privilege applies. (See Upjohn Co. v United States, 449 U.S. 383, 389 (1981)

For communications to be regarded as privileged, they must be treated as privileged. They should be made only in confidential settings and they should not be made in the presence of anyone who is not covered by the privilege, such as a friend of a client. The privilege doesn’t apply to information learned by the lawyer from third parties or to the lawyer’s conversations with the client if those conversations were conducted in the presence of a third party.

The privilege is held by the client and the client is the only person who can waive it.The privilege lasts indefinitely. Therefore, the privilege continues even if representation ends or the client dies.

There are certain situations that may seem harmless but may result in the disclosure of privileged information to a third party. To protect the attorney-client privilege in cases you are working on, you should keep the ‘third party factor’ in mind:

The Third Party who wants information. The client and their relatives or friends usually do not understand the importance of privilege so they may have expectations regarding the sharing of information:

If a relative or other third party calls for information about the client’s case, you must decline.

If a person believes he is entitled to information because he is paying the client’s attorney fees, you must decline.

If the client wants a friend or relative to sit in on a consultation for moral support, you must decline.

Communications by telephone that may be overheard by a third party. Federal laws and many state laws protect the privilege of communications made by telephone, even if the telephone is cellular or cordless.

Conversations that take place over cell phones have an expectation of privacy so long as the parties to the conversation take the necessary care to isolate themselves and talk only when they are out of earshot of others.

The expectation of privacy would be nonexistent if those same conversations took place in a crowded restaurant. On the other hand, an attorney may be very cautious and avoid anything but a hard-wired telephone to communicate with clients…or always take care to be sure no one else can hear the conversation…but there is no guarantee that clients will be as cautious, nor do they always understand that when privileged information is disclosed to a third party, even accidentally, the privilege is usually waived.

Note: The Electronic Communications Privacy Act of 1986 (better known as the ECPA) extended the scope of the Federal Wiretap Act of 1968 to include electronic communications. This act prohibits the interception and disclosure of wire, oral, or electronic communications.

Communications by fax and e-mail that may be intercepted by a third party. E-mail does not have to be encrypted. All fax cover sheets and e-mail messages, whether they are routine or contain privileged information, should contain a statement that it is privileged, and that if the recipient receives it in error he or she should not read it and should inform the sender. While this disclaimer can’t prevent someone else from reading the message, it can help you make the case that the disclosure was inadvertent and that the communication should retain its privileged status.

Always remember that you are dealing with different generations who have different comfort levels when it comes to technology. Some will want everything sent by e-mail. Some won’t be able to get their documents that way or check their e-mail so seldom that sending the communication by US mail would be faster. Be sure to get the client’s permission to communicate by e-mail. You should also be sure client is available to receive documents before sending them electronically.

Work done in preparation for litigation, including both mental impressions and informational material, is protected from discovery by a third party. Mental impressions are the theories and strategies in a case. Mental impressions carry an unqualified privilege that absolutely prohibits their discovery or admission into evidence. Research falls under the category of mental impressions. Informational material covers factual investigations such as witness statements. Informational material is protected with a qualified privilege that can be discovered if the material is essential to the opposing party’s case and if the opposing party has no other way to access the information.

Privileged documents may be accidentally disclosed in a document production. It is always helpful to mark documents as privileged, making the privilege obvious. This warns a third party who shouldn’t have access to the document not to read it, warns staff to protect the privilege, and demonstrates to the court that the document was regarded as privileged if the matter is litigated.

There have been instances involving the revealing of confidential documents in document productions where the privileged document was not properly identified or the method of marking the document was careless…perhaps they were marked in pencil that could not be seen in the copying process or with a sticky note that fell off.

Your challenge: Understand the issues of attorney-client privilege and how those relate to the ‘Third Party Factor.’ Remember that in order for information to be considered privileged, you must treat it as privileged. This means using caution to be sure third parties do not have access to privileged information, do not receive privileged documents, and are not present when you or the attorney are having discussions with the client that include privileged information.

© 2009 Vicki Voisin, Inc.

Do you want to use this article in your newsletter, ezine or Web site? You can, so long as you include this entire blurb with it: Vicki Voisin, “The Paralegal Mentor”, delivers simple strategies for paralegals and other professionals to create success and satisfaction by achieving goals and determining the direction they will take their careers. Vicki spotlights resources, organizational tips, ethics issues, and other areas of continuing education to help paralegals and others reach their full potential. She publishes a bi-weekly ezine titled Strategies for Paralegals Seeking Excellence. More information is available atwww.paralegalmentor.com