Many lawyers don’t appreciate — and some don’t even recognize — the attorney-client privilege’s astounding fragility. Once they understand it, they should warn their clients not to share privileged communications with any third parties.
In UrthTech LLC v. GOJO Industries, Inc., No. 1:22-CV-6727 (PKC)(KHP), 2025 U.S. Dist. LEXIS 154009 (S.D.N.Y. Aug. 8, 2025), plaintiff UrthTech withheld from discovery on privilege grounds its communications with several employees of an entity that had loaned UrthTech money. In addressing defendant’s motion to compel, Southern District of New York privilege guru Magistrate Judge Katharine Parker easily found a privilege waiver because UrthTech conceded the communications went to corporate decisionmakers who were not lawyers and who did not play any role in legal matters. That quick analysis wasn’t even necessary — because UrthTech did not contest defendant’s motion to compel. One might wonder if UrthTech’s counsel correctly — but belatedly — advised its client of the privilege’s fragility.
Lawyers owe clients the duty to educate them about this somewhat counter-intuitive risk. One example might drive the point home — Martha Stewart waived the attorney-client privilege protecting an email she sent to her law firm Wachtell Lipton by sharing it the next day with her daughter Alexis (although that disclosure did not waive the more robust work product protection that also protected Stewart’s email).