10.06. Termination of the attorney-client privilege [Restatement §§ 78, 79, & 80]

The attorney-client privilege lasts indefinitely – it is not terminated at the end of the representation – and survives the death of the client.^[1] Furthermore, the privilege is intended to benefit the client and not the lawyer. That means that the client can waive the privilege with regard to communications – and the lawyer cannot stop the client.

There are a number of ways to terminate the privilege. These include: by agreement of the client, voluntary disclosure of the communication, and where the client asserts as a defense that the client relied on the lawyer’s advice that the lawyer provided ineffective assistance of counsel.^[2]

Universal Standard sued Target Corp. in a trademark infringement case.  In June 2018, Universal Standard retained a public relations firm to provide public relation’s assistance with respect to the lawsuit.  To allow the company to assist with the public relations campaign, the Univesal Standard sent emails between Universal Standard officials and the company’s lawyers.  During the deposition of an official for Universal Standard, there were questions about the emails and the attorney for Universal Standard claimed they were protected by the attorney-client privilege.  How should the court rule? [Universal Standard Inc. v. Target Corp., 2019 WL 1983944 (S.D. N.Y. 2019)]

The court required disclosure.  The public relations firm was not assisting the lawyers in prosecuting the law suit in any way – they were acting solely as a public relations firm.  Because the privileged communications were voluntarily disclosed to a third-party, Universal Standard waived the attorney-client privilege with regard to those emails and they had to be disclosed.

[1] Restatement (Third) of the Law Governing Lawyers § 77.

[2] Restatement (Third) of the Law Governing Lawyers § 78-80.