Let’s say I own an company. I ask my company attorneys to file a DCMA takedown of some videos on youtube. The email back all the ways it is a bad idea but I being the boss insist on being an idiot and make them file the takedown. As expected it blows up on my face and so I blame the attorneys saying they’re the ones that wanted to file the takedown, they clearly don’t know copyright law or fair use, they’re bad at their jobs, etc.
The quit and sue me for defamation saying my comments are factually wrong and ruining their reputation in getting new clients. They want to produce the emails and conversations into evidence showing they objected and were overruled. My (new) attorney tries to block them from being entered into evidence under Client/Attorney privilege. Which side prevails?
IANAL, but my brother is a retired California Superior Court Judge, and he said that as soon as the client says “they’re the ones that wanted to file the takedown” that removes the client-attorney privilege and the lawyer can present what would otherwise be privileged communications in court that it didn’t happen that way.
I am a lawyer. The answer is that privilege will be waived to the extent necessary to answer a claim and that’s it.
Not so sure about a case where the Lawyers themselves have filed suit. Usually, they can do so to recover professional fees. Damages? Who knows.
Calling your lawyers incompetent and that they were advising you to do something that couldn’t work is the epitome of slander and libel in a business that relies heavily on reputation - so therefore likely to invite a lawsuit, which they certainly know how to pursue.
Most lawyers don’t practice defamation law and very few would know who to file a complaint for defamation, much less litigate a defamation case. That is not to say that most lawyers wouldn’t know how to find someone to handle a defamation claim for them.
The rule is essentially identical in US jurisdictions.
The language is straight from the ABA Model Rules, though in slightly different order, which are in effect in some form in all 50 states.
No. In general only the client can waive the attorney/client privilege, but as between attorney and client, the lawyer can reveal otherwise privileged information under the above rule whether the client opens the door or not. For example, the lawyer may reveal confidential information in a case against the client to recover unpaid fees.
There’s an interesting case in Nova Scotia that raises this issue.
A lawyer for the Nova Scotia ministry of Justice filed a brief in a case involving aboriginal issues. The language he used set off a bit of a political storm, and eventually the Premier publicly stated that the lawyer exceeded his instructions.
The lawyer quit and is suing the NS premier for slander. As part of his action, he applied to the courts for discovery of the documents held by the NS government relating to his instructions.
NS government resisted discovery, citing solicitor-client privilege.
NS courts held that the government had to release the documents snd could not rely on privilege, since they had put in issue whether the lawyer acted without instructions, the key point in the defamation action.
Supreme Court of Canada denied leave to appeal.
That was last year. Haven’t heard anything further about the case.
There’s a problem with your scenario. Defamation law is hard and I don’t practice it but from what little I know, and in my jurisdiction, it would actually go like this:
1/ The lawyers would simply be alleging the client’s statements were defamatory - which they likely are on their face - so the lawyers have the easy job
2/ The onus would be on the client to show that the client’s statements were true.
Understood but my admittedly unstated point is that it’s the defendant who is going to have to plead the communication meaning at least where I am that they are going to have to waive privilege right from the get go.