[COMMENTS - 522 Confidentiality -
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ABOUT CONFIDENTIALITY
You, the client, rely on your lawyers to know & advise you about the applicable law – but there are a few legal subjects which can hurt you if you don’t understand them – such as Confidentiality & Privilege, so we offer the following summary because it is too important to be ignored. However, the following discussion is not intended as a comprehensive summary about those subjects – but we only include those things which we believe clients should understand. |
ABOUT CONFIDENTIALITY & PRIVILEGE [522]
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Contents: ¨ Explanation ¨ Best Practices & Warnings ¨ Examples of Confidential Documents ¨ Privilege – in General ¨ 5th Amendment Privilege ¨ Lawyer-Client Privilege ¨ Personally Identifiable Information (“PII”) ¨ Privacy ¨ Other Privileges ¨ Limits to Privileges ¨ Waiver of Privilege ¨ Suggestions |
See also Protect Your Confidential Documents [522B] Protect Your Data [105] Privacy & Security in CaseCrush’s Terms & Conditions [127-24] |
EXPLANATION |
• Communications between people in certain relationships are confidential. • You have a “privilege” to refuse to disclose those communications to your adversary. • You need to understand certain things about confidentiality & privilege – to avoid inadvertently waiving the confidential nature of those privileged communications. • Example: · In general – whatever you discuss with your lawyer is privileged. · Why? The attorney-client privilege encourages clients to speak freely with their lawyers. · Why do you need to know basic things about the attorney-client privilege? In order to get the full benefits of the privilege & also to avoid waiving the privilege. |
BEST PRACTICES & WARNINGS |
¨ Paper Documents & Your Notes m Never write notes on your only copy of a paper document m If you want to write any notes on a paper document – ° Make a copy ° The “clean” copy should never be altered – with notes or otherwise ° The “markup” copy can contain notes to yourself or to your lawyer – but · Keep the markup copy separate from the clean copy – to avoid having the markup copy included in the documents which will be shown to your adversary · Write the word “PRIVILEGED” prominently in red on any markup document which you show or give to your lawyer. |
¨ Go Paperless. m Scan – create an electronic version of all paper documents which might be used in your lawsuit m Filename – save the electronic document with a filename which clearly identifies the document - including a description of document, date, & any sender & recipient |
¨ Isolate Sensitive Documents. Whether a document is paper or electronic – you should separate, tag, or create a list of, the following types of documents: m Communications involving a lawyer m Important documents, whether helpful or harmful to your position |
¨ If you ignore the above rules – the following is more likely than not to occur: ° You write a note “this document really worries me” on page 37001 of the 50,000 pages which you give to your lawyer ° Your lawyer must produce documents to your adversary ° A paralegal does not know your handwriting &/or does not understand that your note on page 37001 was not on the original document & that your note was intended to be seen only by your lawyer ° The paralegal produces all 50,000 pages to your adversary, including your note on page 37001 that “this document really worries me” ° Your adversary realizes the significance of page 37001 & uses it against you |
m Separate out Confidential Documents Confidential communications must not be mixed in with your other documents. You need to take charge & mark or tag or list any sensitive, private, confidential &/or privileged document; otherwise, there is a risk that your lawyer might inadvertently include confidential documents in documents delivered to your adversary. Example: You give you lawyer 50,000 pages, including a letter to Joe Smith & your lawyer does not know that Joe Smith was your previous lawyer – you should assume that your adversary will get that letter unless you actively guard against such a possibility. |
¨ Keep Confidential Matter Confidential. Your communications with your lawyer should not involve, be shared with, &/or overheard by, any other person. |
¨ Communicate Confidential Things in Private. Do not discuss anything about your lawsuit: • in a loud voice – which you might do unconsciously if you or your speaking companion is hard-of-hearing • in public – especially not in an office or courthouse bathroom, corridor &/or elevator • in your adversary’s office • on social media • with other persons – & especially not potential witnesses &/or your adversary |
¨ Limit Persons Involved in Confidential Communications. • Do not involve other persons in your conversations with your lawyer – not a friend or business associate • Do not repeat what you told your lawyer or vice versa to anyone • Exceptions: translator or interpreter or someone in another confidential relationship - such as your spouse or clergyman |
EXAMPLES OF CONFIDENTIAL DOCUMENTS |
You should assume that the following items are confidential: m a document which shows that you committed a crime m notes, email & letters between you & your lawyer, accountant, spouse, clergy, physician, psychotherapist, reporter &/or tax practitioner m confidential notes you write on a non-confidential document m any document containing information which you would consider private |
PRIVILEGE – IN GENERAL ¨ Privilege - Explained ¨ Privileges - Types ¨ Privilege Log |
¨ Privilege - Explained. m The law protects the confidentiality of communications in specific relationships &/or protects people from being forced to disclose certain information m That protection can be lost & a common way a privilege may be lost is if you reveal the otherwise confidential information publicly, or in your testimony, or to your adversary, or to other people. |
¨ Privileges - Types. ¡ Privilege to not testify m against yourself (i.e., privilege against self-incrimination, based on the 5th Amendment of the U.S. Constitution) m against your spouse ¡ Communications in certain relationships: m Accountant-Client m Between Spouses m Clergy-Penitent m Lawyer‑Client m Mediator m Physician-Patient m Psychotherapist‑Patient m Reporter-Source m Tax Practitioner-Taxpayer ¡ Protected Information: m Attorney Work Product m Identity of Informer m Identify of & Information from Journalist’s Source mMedical Record m Mediation Communications m Official Information m Political Vote m Public Interest mRequired Report m State Secret m Tax Return m Trade Secret ¡ Litigation Privilege. Anything said or written in connection with your lawsuit is privileged or immune from liability. Example: you cannot be liable for defamation based on things you say when you testify |
5TH AMENDMENT PRIVILEGE ¨ 5th Amendment Privilege - Explained. ¨ Warning¨ Companies ¨ Consequences ¨ Limitations ¨ Multiple Proceedings ¨ Questions to Ask ¨ Scope of Privilege |
¨ 5th Amendment Privilege - Explained. You may refuse to testify on a particular topic if your testimony on that topic may implicate you in a crime – this is your constitutional 5th Amendment Privilege Against Self-Incrimination |
¨ Warning. If there is any chance that you may have violated any law, stop testifying, even mid-sentence & talk privately with your lawyer. |
¨ Companies. m Companies or artificial entities do not have a 5th Amendment Privilege m If a company record implicates both the company & a company employee in a crime, the employee cannot prevent the company from revealing the record &, if the employee has possession of a company record (as opposed to a personal record), the employee may be required to produce it even if that record incriminates that employee |
¨ Consequences. There can be adverse consequences in a civil case if you assert your 5th Amendment Privilege – including that m your claims or defenses may be limited or even dismissed or m your refusal to testify can result in an “adverse inference,” or even a decision, against you |
¨ Limitations. m There are limitations to the 5th Amendment Privilege m You cannot refuse to testify in deposition about a topic & then testify at trial about that topic m The Privilege does not apply to non-government proceedings or if you face a risk of prosecution in another country m Tax Returns – You must report the amount of income to the IRS, but the Privilege allows you to withhold information about the source (if the nature of the source would reveal a crime) |
¨ Multiple Proceedings. m If you face a criminal prosecution while your civil case is pending based on the same conduct, you might be able to “stay” or delay the civil case m If a judge rejects your assertion of the Privilege & orders you to testify, you may be able to reassert the privilege in a later, different proceeding |
¨ Questions to Ask. At a minimum, ask yourself &/or your lawyer: m Are there are criminal or regulatory charges pending against you? m Do you know of a criminal or regulatory investigation which may involve you? m Do you fear that you may have violated a law? m What are the chances of a criminal prosecution? m Is there any way to avoid incriminating information – without invoking the Privilege? m Can you postpone the civil lawsuit(s) until the criminal case is finished? m Can your lawyer get a protective order barring your adversary from asking certain questions? m What is the relative importance to you of the civil lawsuit compared to a potential criminal case? m What are the risks if you testify? m What are the consequences if you refuse to testify, namely, if you invoke the Privilege? Suggestion. Get additional opinions from lawyers if there is any uncertainty as to whether you should invoke your 5th Amendment Privilege against self‑incrimination |
¨ Scope of Privilege. m You may “invoke” your 5th Amendment Privilege in any case, civil or criminal m You may invoke your Privilege at a court trial, or in deposition, or an administrative law proceeding, or an investigatory proceeding, or a grand jury hearing, or during police interrogations, or when asked for a specific document, password or electronic device |
LAWYER-CLIENT PRIVILEGE o In General o Duration of Privilege o Exceptions ¨ Insurance Company - Appointed Lawyer ¨ Limitations of the Privilege ¨ Multiple clients ¨ Organization’s Lawyer o Purpose of Privilege o Scope of Privilege o Suggestions o Your Lawyer’s Duties |
o In General. m Communications between you & your lawyer are confidential m You cannot be forced to disclose a privileged communication to anyone (such as your adversary, judge, mediator, etc.) m There are exceptions, so that some communications with your lawyer might not be privileged – see Exceptions. |
o Duration of Privilege. m The Privilege continues even m after your lawyer no longer represents you m after your death, except in certain estate lawsuits about your intent |
o Exceptions. An otherwise privileged communication may become unprivileged m If you testify about the otherwise privileged communication or disclose the otherwise privileged communication to a third person · publicly – on social media, in the media, in a press release · privately – in a communication to a friend, relative, or business associate (e.g., you “cc” or “bcc” a third person on a email to your lawyer or you forward an email to or from your lawyer to a third person) m If the communication involves a future crime or fraud (or a future cover-up of a past crime or fraud). Examples: “I robbed a bank yesterday” (privileged); “I need legal advice for a meeting tomorrow in connection with a scam I am running” (not privileged). m If a dispute arises between you & your lawyer m If a dispute arises between you & another person jointly represented in the lawsuit by the same lawyer m If your lawyer reasonably believes that a death or substantial bodily harm could be prevented by disclosing the communication m If the client is a company & the privileged communication is relevant in a shareholder lawsuit m If the client died, in certain estate lawsuits about the client’s intent. |
¨ Insurance Company - Appointed Lawyers. m Lawyers are often selected &/or paid by insurance companies to represent insured persons m Those appointed lawyers have duties to both the insured (who is the client) & the insurance company (the source of payment) – which gives rise to unique privilege issues & conflicts of interest m Sometimes the client can insist that another attorney be paid by the insurance company (instead of or in addition to the appointed lawyer) m An appointed lawyer may report certain information to the insurance company – but cannot pass along information which can adversely affect the insured’s insurance coverage |
o Limitations of the Privilege. m Non-legal advice, such as business advice, from your lawyer might not be privileged m A communication from you which is not intended to obtain legal advice might not be privileged m A document does not become privileged just by giving it to your lawyer. m Facts learned elsewhere cannot become privileged by telling your lawyer those facts. m However, the discussion of those facts with your lawyer is privileged. Example: You told Mr. Smith something & you then told your lawyer the substance of your conversation with Mr. Smith – the conversation with Mr. Smith is not privileged; the conversation with your lawyer is privileged m Certain information about the privileged communication is itself usually not privileged, such as · the existence of the attorney-client relationship &/or communication · the identity of the lawyer & client · the form of the communication & manner of conveyance · the communication’s type, date, time, duration, location & length · persons involved · general nature of the legal services · aspects of the lawyer’s employment · fee arrangement · calendar-type documents showing an appointment or meeting |
¨ Multiple clients. m A lawyer can represent more than one client in a lawsuit, absent an actual conflict of interest between those clients & with disclosure of, & consent to, the potential for a conflict m Many law firms have a policy which disallows multiple client representation in a lawsuit m A lawyer representing more than one client cannot favor the client who is paying the lawyer m As a practical matter, the other clients often defer decision-making to the client who pays the lawyer m Communications between a lawyer & multiple clients on the same case are privileged from discovery by the adversary m Generally, information obtained from any source by a lawyer with multiple clients must be shared with all clients m Communications between one client & the lawyer cannot be withheld from the other clients m If an actual conflict of interest arises, the lawyer cannot pick the favorite client & may be prohibited from continuing to represent any of the clients |
¨ Organization’s Lawyer. m Employees may mistakenly assume that a company lawyer also represents the employee m If a lawyer represents only the company & not the employee, then the lawyer can advocate only for the company & act against the interests of the employee & the company can use communications from an employee against that employee or any other employee m The potential problems increase if the lawyer is a company employee rather than outside counsel & when there is a change of control of the organization m A company’s communications with its lawyer are privileged & communications from any company employee are included in the privilege m Of course, if a lawyer represents both a company & a company employee, then the rules for “multiple clients” would apply. Suggestion. The employee should get in writing an answer to the question - “do you represent me?” |
o Purpose of Privilege. The Privilege exists to encourage full disclosure to your lawyer – especially information which may be damaging to your case. |
o Scope of Privilege. m Any thing communicated between lawyer & client is confidential & you can refuse to disclose a communication if your purpose for the communication was to get legal advice m The privilege protects verbal & written communications between lawyer & client m The Privilege can allow you to withhold a privileged document & to refuse to testify about a privileged matter |
¨ Suggestions. m “cc” Your Lawyer. Some clients make extensive use of the Privilege – such as by involving a lawyer in ordinary business meetings, phone calls & email – so that the communications can be privileged (although this practice is not immune from challenge so make sure legal advice is actually provided from the lawyer about the subjects being discussed) m Second Lawyer. On the other hand, clients often hesitate making full use of the Privilege – such as by withholding information which is adverse or embarrassing. If you have hesitated telling your lawyer something – at least consult about that subject with another lawyer who is not handling your lawsuit, rather than just hope that the issue never surfaces. You benefit either way – either m you get some peace of mind that the thing is not as bad as you had imagined or m you can better appreciate the risk of not telling your main lawyer. m Warning. A simple to avoid an inadvertent disclosure of privileged matter – when you testify, you should never mention your lawyer; if you are about to say anything about your lawyer, stop – you may be on the verge of disclosing privileged matter. Avoid saying anything confidential in an elevator, bathroom &/or hallway at a courthouse or at the office of your adversary’s lawyer. |
o Your Lawyer’s Duties. m Your lawyer must not disclose privileged communications – with some limited exceptions (see Exceptions) m The Privilege protects your communications with any lawyer who you consider hiring – even if you do not actually hire that lawyer |
PERSONALLY IDENTIFIABLE INFORMATION (“PII”) ¨ PII – Explained ¨ Typical PII ¨ Suggestion |
¨ PII – Explained. Certain types of information about your customer must be blocked in any document used in your lawsuit. Reason: Such a document becomes publicly accessible when filed with a court as an exhibit & invades the customer’s established privacy right & could lead to unwanted contact, harassment &/or even identity theft by anyone accessing the court file. |
¨ Typical PII. The FTC, states, courts & arbitration forums have slightly different requirements for “sensitive PII” (as contrasted to “non-sensitive PII”) – but typically require blocking of all or part (such as the last 4 numbers) of the following: m Drivers’ License Numbers m Email Addresses m Financial Account Numbers m Home Addresses m Social Security Numbers (or Federal Taxpayer Identification Numbers) m Telephone numbers |
¨ Suggestion. You should block any PII before delivering documents to your lawyer & not leave it to your lawyer’s office – because you are likely to know where in your documents PII would be located so it is more reliable &/or cheaper for you to do that work. |
Privacy ¨ Privacy – Explained ¨ Notes About Privacy ¨ Examples of Private Matter |
¨ Privacy – Explained. Other information may be confidential – even if a privilege does not apply. |
¨ Notes About Privacy. m Anticipating Possible Abuse – If any information could be used or misused outside the lawsuit (such as in the marketplace), consider not revealing the information, at least until there are agreed limits on access to &/or use of that information m Either/Or – You might not be allowed to assert a claim or defense & then withhold evidence about that claim or defense; you may be forced to either protect your privacy (which may prevent use of some evidence) or you may assert your claim or defense (which may require you to waive some privacy & disclose otherwise private information) m Vagueness as to What Information is Protected – Privacy law is evolving & not clearly defined, so consider asserting your privacy rights in grey areas m Your Duty to Third Persons – You may need to give notice to &/or protect the privacy rights of another person, such as an associate, client, customer, employee, employer, investor, partner, shareholder, supplier, vendor, etc. |
¨ Examples of Private Matter |
m Academic Discipline m Access Code or Combination m Accusation of or Prosecution for Crime m Age m Arbitration Proceeding m Asset m Balance Sheet m Biometric Information m Birthdate & Year of Birth m Budget m Business Bid, Design, Model, Plan & Proposal m Business Method, Practice, Process & Technique |
m Cash Flow m Child’s Name, Personal Information & Other Identifier m Compensation, Salary , Wage & Fringe Benefit m Computer Code, Data, File & Location [e.g., internet protocol (IP), media access control (MAC)] m Confidential Agreement or Contract m Credit Card Number or Account Information m Credit Report m Creditor Name & Contact Information m Criminal History m Customer Identity, Information & List |
m Debit Card Number or Account Information m Disciplinary Action m DNA m Driver's License Number m Email Address, Content & Header Information m Employee Account & Identification Number m Employer’s Data, File & Paper m Employment Application & Application Status m Ethnicity |
m Financial Account Number or Account Information m Financial Condition m Government Assistance Application & Benefit m Government Issued Identification Number m GPS Coordinates m Heritage m Immigration Status m Immunization Record m Income m Identity of Family Members, Relatives &/or Friends m Intellectual Property m Job Offer m Juvenile Criminal Record m Loan, Loan Application & Loan Status |
m Marketing Material & Plan m Medical Information m Medication m Mental Health Detail m Metadata m Military Record & Discharge Information m Misdemeanor Record m Mother’s Maiden Name m National Origin m Net Worth m Opinion m Passport or Visa Account Information & Number m Password m Past Employment m Patient Identification Number m Payroll Record m Pension or Retirement Benefit m Personal Habit m Personnel File m Political Affiliation or Belief m Prescription m Religion or Spiritual Belief m Residential Address |
m Sales Record m Settlement of Lawsuit m Sex Life m Sexual Orientation m Social Security Number or Account Information m Student Record & Transcript m Tax Return & Tax Information m Telephone Account Information, Bill & Number m Test Score m Trade Secret m Trade Union or Association Membership m Trust Beneficiary, Trust Provisions & Related Information m Username m Vehicle Registration Account Information & Number |
Other Privileges ¨ Attorney Work Product ¨ Joint Defense or Common Interest Privilege ¨ Litigation Privilege ¨ Mediation Privilege |
¨ Attorney Work Product. Explanation. mMaterials prepared in anticipation of litigation, or at your’s direction or request, may be confidential mMental impressions, conclusions, opinions, or legal theories are protected m This protection can be claimed by a lawyer, a client & by their agent, consultant, director, employee, expert, officer, paralegal, staff, etc. Exceptions. m The confidentiality might not be absolute – such as if another party shows a compelling need &/or shows the absence of another source for that information |
¨ Joint Defense or Common Interest Privilege. Explanation. m Different parties in a lawsuit may decide to share confidential information & may try to protect that information from disclosure to adversaries m Courts recognize this privilege – but the boundaries are not as clear as the attorney-client privilege Suggestion. m Ask your lawyer to prepare a written common interest agreement – in which there should be a clear explanation as to who is & who is not within the privilege, what subject matter is & is not covered by the privilege, who can waive the privilege, what happens if there is a disclosure, etc. |
Wiretap Act, it is illegal for any person to secretly record an oral, telephonic, or electronic communication that other parties to the communication reasonably expect to be private. (18 U.S.C. § 2511.) |
¨ Litigation Privilege. m This privilege grants immunity from civil liability for acts & statements in court filings & testimony m You cannot be liable for slander based on what you say in Court or deposition m The litigation privilege protects parties, lawyers & witnesses m You can be liable for slander – if you repeat a falsehood in a way unrelated to the lawsuit – such as · online or in social media · in a letter to the editor, a published article, a press release, an op-ed, etc. · in a speech or public interview |
¨ Mediation Privilege. Things said in mediation are usually not admissible & cannot be the basis for liability. Example: During negotiations to settle a case, Defendant says “for purposes of this discussion, I admit that I breached the contract” or Plaintiff says “defendant is a child molester & a thief.” |
Limits to Privilege
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¨ Not Absolute. A privilege may be subordinated to other doctrines (such as national security, ongoing child abuse, ongoing elder abuse, etc.) & confidentiality may not apply, in some circumstances, such as: m consent (a party agrees to disclose confidential matter) m court order m to prevent a crime or harm to someone m discussion of a future crime or fraud |
Waiver of Privilege ¨ Loss of a Privilege ¨ Types of Waiver |
¨ Loss of a Privilege. If you disclose a privileged communication, the confidentiality or privilege may be “waived” or lost, so, unless your lawyer pre-approves – do not reveal to other people what was discussed between you & your lawyer. Any Privilege may be waived: m completely or partially (i.e., limited to a particular communication, subject matter &/or time period) m voluntarily (i.e., deliberately) or inadvertently |
¨ Types of Waiver. m Implied Waiver: Waiver may be implied if another person is present during a privileged & confidential discussion – unless you can show that the other person was a “necessary 3rd party” (e.g., translator) m Intentional Waiver: If you need to use the privileged communication, you can purposefully waive it – but your lawyer might want to put in writing any limits on your waiver m Unintentional Waiver or Inadvertent Waiver: If a privileged document is disclosed to the other side, the other side can argue that all communications about that subject should be disclosed |
Suggestions ¨ Privileged Document Identification & Isolation ¨ Document Redaction ¨ Privilege Log |
¨ Privileged Document Identification & Isolation. m There is always a risk that your lawyer might inadvertently include privileged documents in a delivery of documents to your adversary m Even if your lawyer has a good system for checking for privileged matter, this is one task where redundancy is a good idea m You should identify any document containing privileged matter & mark or tag that document, or better yet, physically isolate, or set aside any privileged document m If you do not want to separate the privileged document, then make a list of privileged documents for your lawyer. See Document Primer - Deal with Confidential Documents [503] |
¨ Document Redaction. m If only part of a document (such as one email in an email chain) is privileged, the privileged part should be blocked out with the word “redacted” appearing in the blocked space m The redacted page should be identified in a Privilege Log |
¨ Privilege Log. m a Privilege Log informs your adversary that certain documents are confidential & are being withheld m If many documents are privileged – ask your lawyer if you can prepare the Privilege Log |