Most clients and many lawyers fail to appreciate the attorney-client privilege’s fragility. Clients and lawyers sometimes pay for this misperception by waiving the privilege when disclosing privileged communications to third parties, but sometimes the misperception results in a more fundamental error.
In Leone v. Fisher, Civ. No. 3:05-CV-521 (CFD) (TPS), 2006 U.S. Dist. LEXIS 75571 (D. Conn. Oct. 18, 2006), a student teacher sued her supervisor for allegedly causing her false arrest. During the relevant time, the teacher had relied on a lawyer’s advice. The defendant sought discovery of that lawyer’s files, including e-mails between the lawyer and the teacher’s husband. Pointing to the majority rule that limits the privilege to those client agents necessary for the transmission of information between the lawyer and the client, the court found the e-mails unprotected. The court explained that “the emails do not appear necessary to effectuate that representation, nor does it appear that [teacher] Diane Leone could not have communicated the information herself.” Id. at *16.
For some reason, the court did not consider the possibility that (1) the lawyer jointly represented the teacher and her husband (which would have assured privilege protection for the e-mails) or (2) the work product doctrine protected the e-mails. Still, decisions like this highlight the fragile nature of the attorney-client privilege.