Use It Or Lose It - Privilege

"Privilege" in the context of the law refers to the special relationships that a person might have which allows them immunity from having to disclose what that person said to the other in that relationship.  A common privilege you may have heard of is the doctor-patient privilege, where anything that a person says to their doctor for the purposes of medical treatment is privileged; that is to say, whatever the person tells their doctor is confidential, and nobody can force the doctor to disclose what was said to him or her except under extremely narrow circumstances.

This privilege was created at least in part for the general welfare of the public; a person's ability to trust in their doctor includes the assurance that no matter how embarrassing, a patient can tell the doctor exactly what is wrong and how it got that way so that the doctor can do their absolute best to treat the patient by having the most accurate information from their patient.



The same is essentially also true of the attorney-client privilege.  An attorney can only give the best advice if he or she receives the most honest, complete information from the client, who will only give such information if the client is assured that whatever he or she says is confidential.  A client can refuse to disclose the contents of confidential communications made in the rendition of legal services to the client.  Guardians and representatives of deceased clients can assert the privilege too.

Of course, Attorney-Client privilege is a privilege, not a right, so certain, narrow exclusions apply.  You can never ask a lawyer for advice about how to commit a crime, and if an attorney believes that you are going to commit a crime, they have a duty to report this to law enforcement.  (Of course, the irony is if you have already committed a crime, the attorney cannot disclose to anyone anything that you asked about or said regarding the prior act.)  

There are also certain exceptions that have to do with attorney who has multiple clients with an issue in common, accusations of attorney of malpractice, and where a client is deceased, which you can ask your lawyer about.  However, one of the most important aspects of the privilege for clients is waiver.  

Use it or lose it!

A lawyer always presumes that his or client is asserting their privilege, so if asked, they will indicate that they cannot comment or discuss a matter unless they have been given explicit permission by the client.  Clients often don't realize that the power lies with them; the client is the keeper of the privilege!  

This is important, because sometimes it might be tempting for a client to forward something that their attorney told them to others; the press, government agencies, people they like (or hate).  However, the Florida Statute is clear; "A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person...voluntarily discloses...the communication..."  Florida Statute 90.507, parts omitted and emphasis added.

As a general rule, you pretty much never want to waive a privilege.  Attorneys work hard to maintain the privilege, carefully crafting communications, being constantly mindful about who receives communications, and sifting through and carefully analyzing documents during litigation and general practice to determine which ones pose a threat of waiving privilege.  One thoughtless CC of an attorney's e-mail can waive privilege and all of that hard work!  Once the privilege is waived, that information is out there, the bell cannot be un-rung.  Always be sure to be mindful of telling anyone what your lawyer said.  As always, any questions and doubts should be brought up with your lawyer.