The differing waiver rules governing the fragile attorney-client privilege and the robust work product doctrine protection predictably create stark differences when family members communicate with each other. This type of communication often generates case law because non-lawyers understandably fail to appreciate the different waiver implications.
In Spencer-Smith v. Ehrlich, SDNY Judge Lewis Liman correctly noted that “[t]here is no privilege protecting correspondence with a confidante simply because the person is a confidante.” No. 23-cv-2652 (LJL), 2024 U.S. Dist. LEXIS 182115, at *22 (S.D.N.Y. Oct. 4, 2024). But a very different rule applies to work product. He correctly noted that disclosing privileged communications even to a “best friend” waives that protection but would not waive the work product protection — concluding that plaintiff's disclosure of work product “to her mother and long-time partner” did not waive work product protection. Id. at *24. Four days later, in Molner v. Molner, 218 N.Y.S.3d 53, 53 (N.Y. App. Div. 2024), a New York state court held that “an educated, practicing physician” waived her attorney-client privilege protection by discussing privileged communications with her parents — noting that her “expectation that all communications involving her parents would remain confidential is unreasonable.”
The Molner case involved the doctor's husband seeking those communications in a divorce case. As in similar situations involving presumably litigation-related communications, one cannot help but wonder whether the wife's lawyer overlooked the waiver differences between privileged and work product-protected communications — putting all her eggs in the privilege basket.
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