It is well accepted that when clients communicate with lawyers for the purpose of receiving legal advice, those communications will generally be protected from disclosure.

This is because courts and bars recognize the public and societal benefit in encouraging a confidential relationship between attorney and client.

As stated in Comment [2] to ABA Model Rule of Professional Conduct 1.6: “Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct.”

Although there are certain exceptions to these protections—such as when attorney and client work together to commit a crime or fraud—one of the biggest risks to the attorney-client privilege comes from within that relationship. Indeed, both lawyers and clients can run the risk of waiving the privilege if they do not safeguard privileged information.

One recent case from the U.S. District Court for the Northern District of California may serve as a warning to lawyers and clients. There, the CEO of a client forwarded a privileged email to the front desk of the hotel where he was staying and asked the front desk to print it for his review. The litigation opponent of that client then sought production of the email.

The court concluded that by forwarding the privileged email for printing, the client had waived the privilege attached to the email. Specifically, the court found that forwarding the privileged email to a generic hotel email address was inconsistent with the desire to maintain privilege, particularly in the absence of any instruction from the party to treat the email confidentially, not to read it, or to delete it after printing.

For many, this case may serve as a sobering reminder of the need to remain vigilant to protect the attorney-client privilege. Here are some factors to help avoid waiver of the privilege.

Be Proactive

Courts typically will protect the confidential nature of communications between lawyer and client, if (1) the communication is sent for the purpose of obtaining or receiving legal advice; and (2) the lawyer and client are both diligent about protecting the confidential nature of that relationship.

Sometimes, clients may believe that if lawyers are copied on communications about business decisions, that makes those communications privileged. But it really depends on the content of those communications.

More commonly, risks of waiver arise in the context of whether the protected communication has been disclosed to a third party. The privilege can be waived if either party to the relationship acts inconsistently with the desire to maintain the privilege.

A conversation overheard in a public setting or a client forwarding confidential legal advice to a third party can all create risk because they are actions that are arguably inconsistent with the desire to maintain privilege.

Although the recent California case has set off alarms for many practitioners, most experts agree that the recent order is not a total bar on lawyers and clients printing or traveling with confidential materials. However, the California case highlights that such materials must be safeguarded, particularly in the era of remote working.

Among other things, the court commented on the fact that the CEO did not place any conditions on the email when forwarding it to a generic front desk email address. Thus, lawyers or clients in similar situations might take care to find if there is a more secure way to handle the printing of the document or to ask the party printing the document not to read it and to delete it after receipt.

Clients can also take care not to forward legal advice to others outside the attorney-client relationship. (One exception to this, of course, is those legal opinions that are prepared specifically for the purpose of being shared with others.)

Presence of Third Parties

Another arm of the waiver doctrine relates to the presence of third parties to the attorney-client relationship. One common scenario is when someone other than the client is paying for the lawyer’s services.

Such arrangements are common and accepted, as long as the client consents, the involvement of a third-party payor does not interfere with the attorney-client relationship and the client’s information remains confidential.

Third-party payors of legal fees are generally not part of the attorney-client relationship, and so all parties can proceed cautiously in determining whether confidential or privileged information may be shared with the third-party payor without it operating as a waiver. In some situations, the payor and the client may have a common legal interest or may even be part of a joint legal defense. In those situations, the sharing of confidential information typically does not act as a waiver.

Further, there are arrangements in which it is expected that lawyers and clients will share information without it operating as a waiver of privilege, including in defenses that are being funded by an insurer. Numerous courts have affirmed that a client does not waive attorney-client privilege or work-product protections by sharing information with an insurer who is defending a claim against the client.

As another example, third-party litigation funders—who help finance litigation for a client as part of an investment—may also expect to receive information about a case so that they can determine the matter’s likelihood of success.

Some courts have concluded that work-product materials may be shared with a litigation funder without risking waiver, but that disclosure of privileged information to a funder could create risk. This area of the law continues to evolve.

By being cautious and protective of the attorney-client privilege, lawyers and clients alike can take steps to reduce the risks of waiver.

Shari L. Klevens is a partner at Dentons and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons’ global insurance sector team.

Alanna Clair is a partner at the firm and focuses on professional liability defense and complex insurance defense.

Klevens and Clair are co-authors of “Georgia Legal Malpractice Law” (2022), “District of Columbia Legal Malpractice Law” (2021) and “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance” (2013).