Updated: Sep 21
One of the oldest rights in the Realm is the attorney client privilege. The right to know that whatever disclosures you make to your attorney, cannot be disclosed by your attorney to anyone without your permission.
However, this privilege only occurs in private conversations with your attorney. The presence of a third person during the conversation with your attorney or the conversation taking place in a public area within the earshot of others, destroys the privilege.
A privileged communication must be private to remain privileged.
So when you go to see your attorney and you bring your mother, sister, aunt, or friend for support in a meeting with your attorney, if they are in the room while you talk to your attorney, there is no privilege that attaches and these supporters can be called as witnesses to testify about the conversations.
Today, conversations with your attorney can take place by phone, email, messenger, or video chats.
Further, today, individuals frequently use social media to communicate. There is an expectation that communication using social media is private and there is a valid expectation that it is private; but is it?
What if you use your employer provided phone, email address and computer to communicate with your attorney, is it a private and privileged communication?
If your employer:
Maintains a policy banning personal or other objectionable use;
Has the right to monitor the use of the employee’s phone, computer or email;
Allows third parties to have a right of access to the computer or emails;
Notifies the employee or makes the employee aware of the use and monitoring policies.
If all of the above is true and you use the employer provided media, then you have no expectation of privacy and therefore, no privilege attaches.
If there is no employer policy of monitoring or allowing third parties to view use of media, and if your employer does not make you aware of policies on the use of employer media, a privilege may attach. Why take a chance on privilege attaching? Only use private communication devices to communicate with your attorney!
If you take all precautions to be assured that your conversations with your attorney are privileged, they may not necessarily remain privileged.
Privilege can be waived. One way that the privilege can be waived is by you relating your conversation with your attorney to a third party. If you do that, the privilege is waived and that third party can be called as a witness to testify as to the attorney client conversation.
In a recent published Michigan case, Stavale vs. Stavale, the Court of Appeals discussed this very issue: How privilege attaches and how it is lost. Stavale vs. Stavale, COA No. 349472.
Ross Stancati practices law in Kalamazoo and all surrounding counties. Call today 269-381-4471 for a consultation.