Decisions Continue to Highlight the Danger of Sharing Privileged Documents with Any Third Parties

January 17, 2007

Although lawyers (and clients that they must train) should not need any reminders, decisions continue to highlight the danger of sharing privileged communications with any third party.

In the United States v. Wade, No. 05-4160, 2006 U.S. App. LEXIS 27110 (10th Cir. Oct. 30, 2006) (unpublished opinion), a defendant convicted of tax evasion argued that the court had erroneously admitted into evidence a privileged letter the defendant had received from his lawyer about the legality of certain transactions. The circuit court rejected this argument, noting that the defendant had waived the privilege by showing the letter to his nephew. Five days later, the court in Stayinfront, Inc. v. Tobin, Civ. A. No. 05-4563 (SRC), 2006 U.S. Dist. LEXIS 80498, at *2 (D.N.J. Nov. 3, 2006) (not for publication) ordered the well-known New Jersey firm of Riker, Danzig to produce e-mail communications between the firm and its client — because the communications had included a non-lawyer acting as the client’s “lay adviser.” Riker, Danzig argued that the “lay adviser” was acting as the client’s agent, but the court ruled that the law firm had not proven that the adviser “played a vital role in facilitating communications between Riker, Danzig” and its client. Id. at *11.

These two decisions should remind all lawyers that clients and their lawyers can destroy the privilege by involving third parties (even family members and close confidants).