1

From this tweet:

Wow. Marjorie Greene's attorney, @LLinWood, just accidentally texted to me his advice TO HER about how to spin my new article about her:

It is too long and all over the place. Ignore it and give it NO play. If forced to comment, just describe it as a "smear article that is nothing more than anti-Trump propaganda."

Would that count as privileged information, such that the lawyer had inadvertently waived privilege? My understanding is that privilege only applies to legal advice, and thus wouldn't cover PR advise like that, but IANAL.

2

My understanding is that privilege only applies to legal advice, and thus wouldn't cover PR advise like that, but IANAL.

Your understanding is incorrect.

Would that count as privileged information,

Yes.

The attorney-client privilege applies to confidential communications between an attorney and a client in the course of their professional relationship.

The authority supporting this varies. In some jurisdictions and in federal court, it arises as a matter of common law case precedents. In other jurisdictions, it is a statutorily created right. But all of them would agree that it includes all confidential communications in the course of the professional relationship. Most of the variation pertains to the extent of the crime-fraud exception (not applicable here).

Attorneys are expressly authorized by the rules of professional conduct to offer advice to their clients in the course of their professional relationship with a client that extends beyond advice that is strictly legal. Rule of Professional Conduct 2.1 (which has been adopted verbatim in almost every U.S. state) says:

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

Then there is a very complicated part of this issue:

such that the lawyer had inadvertently waived privilege?

Generally, a lawyer's unilateral inadvertent action does not waive the privilege. The typical fact pattern is inadvertent inclusion of an opposing party in a "reply all" email meant to be only a "reply" to or "forward" to a client, or inadvertent inclusion of privileged material in a discovery response (e.g. due to failing to wipe metadata).

When another lawyer receives inadvertently disclosed privilege material there is a protocol to be followed.

The consequences in this case are less clear. The tweet probably wouldn't be admissible as evidence in court, unless the client ratified the disclosure. But once it is out there it isn't illegal for the inadvertent recipient, if the recipient is a non-lawyer, to share it further as was done in this case. This could even lead to a malpractice case against the errantly tweeting lawyer.

3
  • I'm very confused about where to come down on this issue because the bar has also advocated keeping the advice that you expect to be covered under the attorney-client privilege to legal advice instead of things such as business advice. – User37849012643 Oct 10 '20 at 13:41
  • @User37849012643 Source? – ohwilleke Oct 10 '20 at 22:14
  • source – User37849012643 Oct 10 '20 at 22:18
0

Would that count as privileged information, such that the lawyer had inadvertently waived privilege?

The attorney-client privilege is something that only the client can waive. The only way the lawyer's "mistaken" tweet would forfeit the privilege is a scenario where the client instructed or consented to the lawyer's publication. The client's consent or instruction for that is a form of waiver of the privilege.

My understanding is that privilege only applies to legal advice, and thus wouldn't cover PR advise like that

Actual or staged mistakes aside, the lawyer's suggestion to her client can certainly qualify as legal advice insofar as it might be in preparation for potential or ongoing litigation. Therefore, suggestions of that type would be protected by the privilege.

1
  • 1
    @User37849012643 A context of attorney-client relation implies that the communications at issue pertain to (asking for, or giving, accordingly) legal advice because they occur in the adviser's capacity as attorney. Or perhaps you could offer a counterexample to clarify the confusion (?). – Iñaki Viggers Oct 9 '20 at 23:06

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.