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Judges Disagree About the Waiver Impact of Plaintiffs' Disclosure of Privileged Communications to Their Son

October 27, 2010

Most courts find that the only client agents or consultants within the attorney-client privilege are those necessary for the transmission of information between the client and the lawyer. However, courts sometimes disagree about whether a client agent's involvement meets the "necessary" standard.

In July, well-respected Southern District of New York Magistrate Judge James Francis held that two individual plaintiffs waived their privilege by disclosing protected communications to their financial adviser, their accountant, and their own son. See Green v. Beer, No. 06 Civ. 4156 (KMW) (JCF), 2010 U.S. Dist. LEXIS 65974 (S.D.N.Y. July 2, 2010). Nearly two months later, in Green v. Beer, No. 06 Civ. 4156 (KMW) (JCF), 2010 U.S. Dist. LEXIS 87484 (S.D.N.Y. Aug. 24, 2010), Judge Kimba Wood agreed with Judge Francis's conclusion about the first two client agents – but disagreed about the son. Judge Wood pointed to the son's explanation that he was assisting his parents in sending and receiving e-mails – ultimately concluding that "the technical assistance provided by their son, in his capacity as their agent, should not constitute a waiver of the attorney-client privilege." Id. at *13-14. Judge Wood also noted the public policy involved, explaining that clients without technical expertise "should not be prevented from enjoying the advantages of email correspondence for fear that the necessary assistance of a third party – here, the Green Plaintiff's son – in sending or receiving such correspondence will lead to the forfeiture of the attorney-client privilege." Id. at *14.

Although it is comforting to know that parents might not waive their privilege by having a child help with their e-mail, clients and lawyers should remember that Judge Wood agreed with Judge Francis's conclusion about the financial adviser and the accountant.

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