Protecting Privilege Series / Part One of Three
In today’s digital-first legal world, safeguarding attorney-client privilege is more challenging than ever. This first part explores the high stakes of privilege protection, why the rules differ across jurisdictions, and what’s at risk when even one mistake is made.
Picture this: You’re in the middle of a high-stakes case. Your paralegal accidentally shares a link to your case files. Within hours, opposing counsel has access to two years of confidential communications. Sound like a nightmare? For Alex Jones’ legal team, it was reality, and it contributed to a $45.2 million judgment.
Welcome to the precarious world of attorney-client privilege in modern litigation.
The Foundation of Trust
Attorney-client privilege is the bedrock of our legal system. As the U.S. Supreme Court noted in Upjohn Co v. United States, “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.”
In our common law system, privilege must be actively protected, or it’s easily lost.
Why This Matters More Than Ever
Privilege review has become one of the single largest costs associated with ediscovery — and for good reason. The stakes couldn’t be higher:
- Millions of dollars in losses
- Destroyed cases and reputations
- Professional discipline for attorneys
- Complete waiver of work product protections
Start with the basics of privilege protection
Protecting privilege in today’s digital world is no easy feat — one slip can undo years of work. To help your team stay vigilant, we’ve created a practical resource that breaks down the 10 best-practice rules every firm should follow.
Why Digital Evidence Changed Everything
The introduction of electronic evidence in the 1990s fundamentally transformed an attorney’s duty to protect privilege. Why? Because file sharing digital files takes exactly one mouse click.
The challenges are as follows:
- Privileged documents can be easily overlooked in massive data collections
- They get commingled with routine business communications
- In-house attorneys blur the lines between legal advice and business operations
- A single misplaced file can upend an entire case
The Rules Aren’t Consistent
Privilege rules vary wildly from state to state. While the ABA Model Rules provide guidance, individual states have taken vastly different approaches:
Some states require you to:
- Stop reading immediately upon discovering privileged materials
- Notify the sender right away
- Follow the sender’s instructions to the letter
Other states:
- Only require notification
- Have no specific rules at all
- Follow something in between
The patchwork of regulations means your team needs to know the specific requirements in each jurisdiction where you practice.
The Simple Rule That’s Anything But
ABA Model Rule 1.6 on Confidentiality of Information seems straightforward:
“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent…”
Simple, right? Just don’t give unauthorized access to your legal strategies or client communications.
However, in practice, protecting privilege has become one of the most complicated tasks in litigation.
Real Questions Your Team Should Be Asking
Before you produce a single document, make sure you can answer these questions for your jurisdiction:
- Does the receiving lawyer have an obligation to notify the sender if they receive privileged materials?
- Can the receiving attorney read inadvertently produced material and share it with their client?
- Should a lawyer continue reading a document once they realize it contains privileged information?
- Will a court impose sanctions — including disqualification and evidence preclusion — if inadvertently produced materials are mishandled?
The answers to these questions vary dramatically depending on where you’re practicing. And getting them wrong can be catastrophic.
The Bottom Line
In today’s digital-first legal landscape, protecting attorney-client privilege isn’t just about following best practices. A moment of carelessness, a misconfigured sharing link, or a misunderstood state rule can transform a winning case into a disaster.
With the right knowledge, systems, and precautions, you can protect your clients’ privileged information even in the most complex litigation.
In our next post, we’ll dive into the federal rules that govern privilege protection and examine real cases where things went catastrophically wrong — and what we can learn from them.
Strengthen Your Firm’s Privilege Protection Strategy
The difference between a secure case and a costly privilege breach often comes down to process. Our Protecting Attorney-Client Privilege eGuide covers essential best practices, relevant case law, and how to codify clawback procedures that hold up under scrutiny.
