Stranger Danger

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When Martha Stewart was in the middle of her legal troubles, she wrote an email to her lawyer, describing in great detail the circumstances surrounding her purchase of ImClone stock.  The next day, she forwarded a copy of the email to her daughter.  Boom!  Attorney-client privilege waived.  US v. Stewart, 287 F. Supp. 2d 461 (S.D.N.Y. 2003).  Happily for Ms. Stewart, the email was still subject to work product protections.

A plaintiff’s lawyer decides to generate some publicity for his case by inviting a film crew to follow him around and film his work.  Whoops!  Motion to compel production of six hundred hours of footage granted.  Chevron v. Berlinger, 629 F.3d 297 (2d Cir. 2011).  Indeed, the privilege waiver snowball started rolling, such that the lawyer was later ordered to turn over two hundred thousand pages of his client files and sit for his own deposition.   

This tip is simple:  Sharing attorney-client communications, whether due to the actions of the lawyer or the client, whether contemporaneously or after the fact, can waive privilege protections.  Be careful about meetings with clients who wish to bring their spouses, children, or other advisers.  Be careful of conversations in airplanes, elevators, and hotels.  Don’t leave confidential information laying around conference rooms, coffee shops, or other places where others might access.  In other words, don’t bring a stranger into your attorney-client relationship.