Sometimes you read a case, and you just have to laugh. Kaiser v. Gallup, Inc. was one of those cases for me.
After being terminated from employment, the plaintiff sued her employer for discrimination. During the case proceedings, the employer discovered that the plaintiff had communicated with her cousin, who was an attorney, about events leading up to and occurring around the time of the termination. The employer also discovered that the plaintiff had told others about her communications with her cousin. According to the judge, “These communications occurred, in part, through postings on Plaintiff’s Facebook page.” (?!!!) When the employer requested copies of these communications, the plaintiff refused to produce them on the grounds that they were protected by the attorney-client privilege. (Apparently, the cousin had represented the plaintiff in her claim for unemployment benefits.)
So, to be protected by the attorney-client privilege, the communication must be made:
- In confidence
- In connection with the provision of legal services
- To an attorney
- In the context of an attorney-client relationship
The employer then asked the judge to compel the plaintiff to turn over the communications, arguing that (1) there was no evidence that those communications were made in the context of an attorney-client relationship, and (2) even if there were such a relationship, the plaintiff waived the privilege by disclosing the communications to others. (From watching various legal shows – my current favorite is “The Good Wife” – most of us know that the privilege is waived if the communication is shared with a third party. I think they covered that in law school as well…)
In this case, the judge found that there was no evidence as to the scope of the plaintiff’s attorney-client relationship with her cousin and no information from which the judge could determine if the communications were being made in the connection with providing legal services in the context of an attorney-client relationship. So the judge ordered the plaintiff to produce the communications.
Sadly, the judge didn’t reach the really entertaining Facebook postings issue. It’s a little unclear what the judge meant in saying, “These communications occurred, in part, through postings on Plaintiff’s Facebook page.” Did the actual conversation between the plaintiff and her cousin take place on Facebook? If so, were the postings visible to the plaintiff’s Facebook friends? Or did the judge mean that the plaintiff talked about her conversations with her cousin in Facebook postings with her Facebook friends? Either way, it seems like a no-brainer – putting the conversation on Facebook or talking about the “privileged” conversation on Facebook means that there is no confidential communication! And, therefore, there is no attorney-client privilege!
Lesson for the day – don’t use Facebook to talk to your attorney and don’t talk about conversations with your attorney on Facebook! (I think even my crazy teenagers would get that!)