Although lawyers understandably focus mostly on the privilege that they enjoy when communicating with their clients, other professionals (psychiatrists, clergy) also have privilege protection of one degree or another. Does the fragile attorney-client privilege evaporate upon disclosure into one of those other relationships?
In Faulkenberry v. Austin, Civ. No. 1:22-cv-01150-JMC, 2024 U.S. Dist. LEXIS 160183 (D. Md. Sept. 5, 2024), employment discrimination plaintiff Faulkenberry disclosed attorney-client privileged communications to her treating therapist. The court acknowledged earlier case law finding that such disclosure normally does not waive the attorney-client privilege. But the court ruled that Faulkenberry waived her attorney-client privilege because she had produced “largely unredacted” records from her therapist, and “intends to rely on [the therapist]’s testimony in support of her claims for a psychological injury and emotional distress.” Id. at *6.
Lawyers advising clients who are seeing other professionals such as therapists should assess the waiver risks of their own and other privileged communications.
