A State Court Analyzes the Subtle Distinction Between Disclosing a Privileged Communication and Acting Upon It

January 24, 2007

It can be very difficult to differentiate between disclosing (1) the fact of a privileged communication and the client’s later action and (2) a privileged communication’s substance. The former does not waive the privilege, but the latter does.

In Transocean Capital, Inc. v. Fortin, 2006 Mass. Super. LEXIS 504, at *5 (Mass. Super Ct. Oct. 20, 2006), the court analyzed two e-mail statements that a client wrote to a third party: (1) “after consultation with counsel, we are willing to provide the detailed information . . .”; and (2) “the proposed solution regarding the meeting . . . would not cure the issue that counsel has, which is that any meeting, which necessarily involves reactions and feedback, would taint our communications . . . .” (Internal quotations omitted.) The court correctly held that the first sentence did not waive the privilege, because it merely stated that the client “had decide[d] to pursue a particular course after consultation with counsel.” Id. at *12. However, the second sentence described the lawyer’s advice, and therefore waived the privilege.

It may be too much to ask any client to understand this subtlety — so lawyers may want to teach their clients to avoid all mention of communications with their lawyers.