In Hawaii (as in almost all States), communications between an attorney and client (and/or prospective client) are privileged and confidential. Specifically, “[a] communication occurring in the following manner is privileged (1) where legal advice of any kind is sought, (2) from a professional legal adviser in his or her capacity as such, (3) the communication relating to that purpose, (4) made in confidence, (5) by the client, (6) are at his or her instance permanently protected, (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.” Save Sunset Beach Coalition v City and County of Honolulu, 102 Hawaii 465, 485 (Hawaii, 2003).
However, this privilege can be waived by the client. To voluntarily waive privileged communication, HRE Rule 511 provides as follows:
A person upon whom these rules confer a privilege against disclosure waives the privilege if, while holder of the privilege, the person or the person’s predecessor voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is a privileged communication.
The commentary to this rule states that “[a]ny intentional disclosure by the holder of the privilege defeats this purpose and eliminates the necessity for the privilege in that instance.” Commentary to HRE 511. As such, if a client discloses privileged information made to his or her attorney to a third party, the privilege (and confidentiality) of such information may be deem waived. However, “[d]isclosure constitutes a waiver of the attorney-client privilege, ‘only as to communications about the matter actually disclosed’” Hernandez v Tanninen, 604 F.3d 1095, 1100 (9th Cir., 2010). Therefore, just because a client may disclose attorney client communication to a third party, only the communication that was actually disclosed may no longer be confidential or privileged. All other communications (not related to subject matter of the disclosed communications) may still remain privileged.
Further, selective disclosure of confidential communication for the sake of obtaining a tactical advantage in litigation constitutes a waiver of the attorney-client privilege.”)(citations omitted) see also Chevron Corp. v Pennzoil Co., 974 F.2d 1156 (9th Cir., 1992)(“The privilege which protects attorney-client communications may not be used both as a sword and a shield.”)(citations omitted). “[T]he burden of proving that the attorney-client privilege applies rests not with the party contesting the privilege, but with the party asserting it.” Weil v Investment Indicators, Research and Management, Inc., 647 F.2d 18 (C.A.Cal., 1981).
Therefore, it is important for clients to keep all communications between his or her attorney confidential and they should not disclose such communications to third parties. By not protecting their confidentiality, the client risks waiving the privilege of such communications.