Don’t Accidentally Lose the Attorney/Client Privilege
The attorney/client privilege protects many confidential communications between attorney and client. Let me focus on one very important principle – the communication must be “confidential.” If you send an email to your attorney asking for legal advice and you copy your advertising agency because you want them to know what’s going on, you have lost the privilege, at least as to that communication. Unfortunately, a clothing company suing Target for trademark infringement learned this the hard way. The company sent an email to its attorney regarding legal advice but copied its advertising agency to evaluate whether to issue a press release regarding the lawsuit. A US Magistrate Judge recently decided that sending the email to the advertising agency defeated the privilege.
Today’s Takeaway? Don’t send any communication with to attorney to anyone outside your organization without consulting with your attorney first. It’s a two-way street, so also make sure you do not forward communications from your attorney to anyone else without the attorney’s permission. Loose lips sink ships, as they say.
Jay L. Hack is available at firstname.lastname@example.org.