In our article "Understanding the Limits of the Attorney-Client Privilege," we laid out the general policy behind the attorney-client privilege, and what is, and is not, a "privileged communication" between an attorney and her client. In this article, we will focus on communications that are subject to disclosure even though they are otherwise privileged. In other words, there are important exceptions to the attorney-client privilege. In legal terms, the privilege can be "waived."

Following are some of the most common examples where the privilege has been deemed waived:

  • Client's Voluntary Disclosure to a Third Party = Waiver - If the client chooses to discuss with someone else what he talked about with his lawyer, those communications with his lawyer will no longer be protected.  
  • The Crime-Fraud Exception - Although a client's discussions with a lawyer regarding his past misdeeds are certainly privileged, a client who seeks legal advice in order to perpetuate a crime will not be allowed to avail himself of the attorney-client privilege.
  • Attorney-Client Fee Disputes; Legal Malpractice Claims - Another common exception to the attorney-client privilege is that a lawyer may reveal the communications she had with her client if necessary to collect her unpaid fee from that client. In a similar vein, the lawyer is permitted to disclose communications with the client in the course of defending herself against the client's claims that the lawyer acted negligently or improperly. 
There is an important corollary to this last rule, however: the client's communications with her current attorneys that are pursuing a legal malpractice claim against her former attorneys remain protected.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer