New Jersey Law Regarding Waiver of Attorney-Client Privilege Amended

Much like the protections afforded to a patient seeking treatment from a physician, clients who meet with attorneys for legal services are afforded professional privileges, as well. Namely, when dealing with an attorney, client information may be shielded by the work-product doctrine and attorney-client privilege.

Simply stated, the work-product doctrine shields tangible materials prepared in anticipation of litigation from discovery by opposing counsel. The attorney-client privilege, on the other hand, protects written and oral confidential communications between attorneys and clients made for the purpose of requesting or receiving legal advice. The rationale behind the privilege is to promote honest communications between attorneys and their clients without the fear of either party disclosing such communications to opposing counsel, police, the court, or even the general public. Importantly, the privilege only protects confidential communications between clients and attorneys. Therefore, absent some exception, once the privileged communications are shared with a third party, a client’s protections are waived permanently pursuant to New Jersey Rule of Evidence (N.J.R.E.) 530. The ability for a client to waive their attorney-client privilege differs from work-product, where disclosing such preparations to friendly third parties typically does not waive the protection.

Recently, the Legislature has amended N.J.R.E. 530 to broaden the protections afforded to clients in the context of attorney-client privilege and work-product doctrine. Specifically, as of July 1, 2020, N.J.R.E. 530(c) was enacted to limit instances where a client may waive their protections. This amendment functions largely in part to ensure that inadvertent disclosures, especially in a time where technology is on the rise and where the ongoing pandemic has limited communications to electronic methods, do not remove rights that all clients are entitled to. However, the amendment is specific to inadvertent disclosures either in a state proceeding or to a state office or agency and does not, for example, cover the inadvertent sending of a confidential email to your neighbor whom you are suing. Further, in order for a client to avoid waiving their privilege due to an inadvertent disclosure in a state proceeding or to a state office or agency, the (1) disclosure must be inadvertent; (2) the holder of the privilege or protection must have taken reasonable steps to prevent the disclosure; and (3) the holder must promptly take reasonable steps to rectify the error.

Therefore, even with the new amendment limiting waiver of attorney-client privilege and work-product doctrine due to inadvertent disclosures, there still remains a possibility that a client could waive their privilege outside of a state proceeding and disclose confidential information to a third party other than a state office or agency. Thus, although this new amendment is now effective, it remains of utmost importance for clients to avoid sharing their case information with third parties.

If you believe you may have waived your attorney-client privilege or work-product protections, please feel free to reach out to Ward, Shindle & Hall.