Privilege Waiver: How Does It Affect a State Bar Complaint?

When a state bar complaint is filed against you, how does a privilege waiver affect it? Because the bar investigates the complaints, it’s obvious that at least some of privilege is waived. The real question is: what amount of information is covered by the privilege waiver so that you can defend yourself against the state bar complaint?

Where’s the Line Drawn with Privilege?

If a state bar complaint is filed against you, the client has implied that they submit to a privilege waiver related to the issues that they want the bar to investigate. However, this does not create a waiver for all attorney-client communication. To summarize Megan’s example from her article on the privilege waiver: If you represent a client on several matters, you must be careful to maintain privilege to any issue or matter that’s not included in the state bar complaint. Even if you’re only representing the client in one matter, the privilege waiver may only cover that one issue. So, you must be careful.

State Bar Privilege Waiver Issues Are More Common Than You Think

Yes, but how often could this possibly happen? Well, more common than you think between a bar complaint and an accusation of malpractice. Additionally, online reviews have become quite common. Is there an implied privilege waiver that allows you to defend yourself? What about if a former client contacts opposing counsel to complain about you? Has the client waived privilege if the matter is still pending? What about if there is no pending litigation?

Most importantly, how do you sort all of this out? How do you know when there’s an implied privilege waiver?

Go Straight to the Source

To find out when there’s an implied privilege waiver when a client (or former client) complains to an unofficial source (such as online or to opposing counsel), ask the ethics committee. However, your ethics committee may not have a rule on the books to cover this sort of issue. If you’re involved in litigation and the client complains to opposing counsel, ask the court.

What If There’s No Guidance?

There may not be any guidance in your jurisdiction about waiving privilege when it comes to a negative online review. It’s never a good position to be in. A negative online review can be highly detrimental to your firm. Whether you want to or not, you may have to directly engage the client. You may need to confirm in writing that you believe the client’s actions mean they waived their privilege and that you intend to respond to their review and that you may include information that you believe is no longer privileged.

You might consider talking with an ethics defense lawyer to determine the best option. For example, if the client just said they thought you did a terrible job, they probably didn’t waive privilege. If the client gave out privileged information about the matter and accused you of doing something wrong, it’s possible they waived privilege. Even if there is a law that covers this situation, there are still small nuances that could trip you up. So, talking with an ethics defense lawyer could be your best option.

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