A while back, a colleague of mine had to deal with a client who fell squarely into the “with clients like these, who needs enemies” category. This client had shared copies of all of my colleague’s emails to him with of the opposing parties in the case. Worse, my colleague didn’t learn about the disclosure until a few months down the line when his emails turned up in response to another lawyer’s subpoena. My colleague’s predicament got me to thinking: if clients can be foolish enough to send their own lawyer’s correspondence, prominently marked as privileged and confidential, to opposing parties, then what kinds of problems can they cause for themselves (and for us, as the lawyers who represent them) when the prohibitions on disclosure aren’t nearly that clear?
For example, consider the recent social media/information sharing site, Blippy.com/, where users can link their credit cards and automatically share information about recent purchases. A client who uses Blippy and pays his lawyer via credit card essentially broadcasts his legal problems to the universe. Admittedly, in many situations (for example, where a case is already publicly filed), disclosing retainer of counsel is not necessarily devastating. But what about situations where a client is merely contemplating legal action – such as a divorce or IPO or business incorporation or a suit against an employer? There, tipping off others to having hired a lawyer could prejudice the client’s case or eliminate the strategic advantage of surprise. Unfortunately, just as some clients don’t realize the repercussions of sharing letters that their lawyers have sent (and waiving privilege as a result), likewise, few clients can comprehend the problems they can cause themselves by revealing, even inadvertently through a site like Blippy, that they’ve retained counsel.
You may think that this problem is far fetched — but increasingly, consumers are using credit cards to pay for legal services. In fact, take a look at what I uncovered on Blippy: consumers reporting their purchase of legal documents at LegalZoom [photos & identifying information redacted]. Can disclosure of credit card fees to lawyers be far behind? If so, as lawyers, we owe an obligation to clients warn them of the repercussions of oversharing – whether it comes through sending our emails to opposing counsel, or revealing their transactions with their lawyers on sites like Blippy.