The Importance of Attorney Client Privilege in a Digital Age

The Importance of Attorney Client Privilege in a Digital Age

Pierre Domercq Divorce

What is the importance of attorney client privilege in a digital age?  How can our digital lives affect a divorce in Carlsbad, Oceanside, Vista, Encinitas or North County?

We’ve all done it.  In the digital world we live in it is really easy to make a small, yet very public mistake.  Unintentionally hitting “reply all” when sending a clever or sarcastic retort, accidentally “liking” a seriously outdated picture while “facebook stalking” a friend, or inadvertently referencing something you saw on social media (not real life).  These moments are embarrassing, but we can laugh them off because we all empathize. These kinds of mistakes can have serious implications on your divorce though, as well as child custody, parenting time, spousal support or property division.  A digital mistake could even lead to someone revealing conversations you have with your attorney!

Attorney client privilege is not just a plot twist in the legal dramas on TV, it is very real, and plays an integral role in almost every case.  The relationship between a client and their attorney is critical to our justice system, and in order to facilitate this relationship, lawmakers have created protections for all communication between a client and their attorney for the purpose of receiving or giving legal advice.  These protections keep the content of these conversations from EVER being revealed.

These protections allow a client to speak freely, openly, and honestly in order to receive accurate and well-informed legal advice.  Despite the importance of these protections, they are not without their limits and even if the communication is the type that privilege normally protects, privilege can be waived unintentionally.   This is the importance of attorney client privilege in a digital age.

You see, in addition to the above described exceptions to attorney client privilege, a judge may find that privilege was waived in circumstances you may not expect.  First, if a client speaks to an attorney for the purpose of receiving legal advice, but does so in a manner where it is reasonable that other people can hear (other than the Lawyer’s staff), privilege may not protect those communications.  Examples include conversations in public, unreasonably loud conversations, or private meetings where a third party is present.

This sounds simple, but the same principles apply to digital sharing.  For example, take the example of the client that emails their attorney to get legal advice.  This is a perfectly acceptable practice, and emailing alone does not disrupt privilege.  However, if at some point the client forwards that email, or chain of emails, to a third party, the client has waived their privilege.  There are other problems that can be created, but essentially, the communications contained in that email are now discoverable and potentially admissible in court!

So, as technology becomes more common place, it is really important to take extra steps to avoid sharing the confidential communications between you and your attorney.