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Lawyer-Client Privilege Protects Us All

Posted By Cliff Tuttle | April 11, 2018

No. 1,465

Alan Dershowitz
Image: Washington Examiner

Today will be the second day of testimony by Mark Zuckerberg before a Senate committee regarding the privacy rights of  Facebook users in particular and internet users in general.  It is an important issue and ought to be explored.  Whether the users of Facebook are or should be entitled to privacy for the information they place on their Facebook accounts is a legitimate subject for discussion.

Without appearing to trivialize the information that has been recorded in Facebook, it must be pointed out that this medium is not intended for the communication of secrets.  It contains personal information, much of which is trivial.  By now, it should be apparent to all that information placed on Facebook can often be accessed by hostile individuals posing as friends.  A good rule of thumb is to post nothing that you wouldn’t broadcast to the public. A better one is to avoid Facebook entirely.

This is one reason why I have long taken the position that lawyers should never open a Facebook account.  Potential or existing clients may communicate privileged information which is impossible to protect. They can do it by asking a question before the lawyer has a chance to wave off the communication.  The confidential nature of the information may not be evident to either party at the time.

While a firestorm rages around the use of personal information voluntarily given on an insecure website, a much more serious issue is being raised by the raid on the office, home and hotel room of the President’s personal attorney.  This was accomplished after a judge heard argument by the Special Counsel, in private, that there was probable cause that such a raid would produce evidence of a crime. Of course, this was all done in secret, so we will not immediately know what was presented to the court.  Meanwhile, the Special Counsel has seized a treasure trove of documents, most of which have nothing to do with the Special Counsel’s mission. If it is later determined that the information was seized illegally, it will nevertheless be known to prosecutors, police and perhaps to the public.

This should scare the hell out of everybody.  In the long view, it doesn’t matter who is the target of such an investigation.  Next time, it could be any of us.  As Harvard Law Professor and civil liberties advocate Alan Dershowitz concludes in his article in The Hill, this creates a precedent that is a loaded gun laying about that can be used against others in the future.

Lawyers must have the ability to protect clients and clients must have the confidence that information protected by lawyer-client privilege will remain safe.

CLT

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CLIFF TUTTLE has been a Pennsylvania lawyer for over 40 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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