What is the Long-Term Effect of Waiving a Protection? – Part I

July 1, 2009

Because the attorney-client privilege provides only a fragile protection, disclosing privileged communications to nearly any third party waives that protection as to all third parties.

Even worse, waiving the privilege normally destroys that protection for all time and for all purposes. In S & I Investments v. Payless Flea Market, Inc., No. 4D08-3478, 2009 Fla. App. LEXIS 6043 (Fla. Dist. Ct. App. May 27, 2009) (per Fla. R. App. P. 9.020(h), not final until disposition of motion for rehearing), a lawyer sued a former client for fees. When she was deposed during that lawsuit, the former client disclosed privileged communications. Another adversary claimed that the deposition testimony waived the privilege for all purposes, and sought access to the former client’s testimony. The court agreed, concluding that “[b]y testifying without objection in the deposition, petitioner waived any remaining attorney-client privilege.” Id. at *9.

Lawyers should always remember the far-reaching adverse effects that can come from a voluntary disclosure of privileged communications. Next week’s “Privilege Point” will explore the same issue in the work product context.