As lawyers, we often assume that our internal notes and informal communications, such as Slack or Teams messages, remain confidential and protected by privilege. Generally, that assumption is correct. But there’s a notable exception that every lawyer should keep in mind: when your former client sues you, those previously protected notes and messages may suddenly become producible.
When a lawyer is sued by a former client, commonly seen in professional negligence claims or LawPRO files, solicitor-client privilege, which usually protects communications between lawyer and client, typically disappears. This makes sense because the former client (now plaintiff) is directly challenging the lawyer’s handling of their case, so relevant communications become evidence.
Take the example of professional negligence claims handled by LawPRO, the insurer for Ontario lawyers. In these cases, former clients often argue that their previous lawyer mishandled their file or did not follow instructions. To respond effectively, the lawyer has to produce notes, internal memos, or even casual Slack conversations that they might have assumed would stay private.
This includes documents that lawyers typically consider their own, such as internal notes about the strategy, risks identified, or informal opinions expressed within the firm. These materials are usually protected from disclosure, but once the client alleges professional misconduct or negligence, they may become relevant.
A growing area of concern for lawyers is the informal, day-to-day communication we engage in through platforms like Slack or Teams. These platforms feel casual, encouraging quick exchanges and informal discussions. However, the informal nature does not prevent these messages from becoming evidence if a former client initiates litigation against the firm or lawyer.
Simply put, what you casually write in a Slack message today could end up being read out in court tomorrow.
Tips for Lawyers
Here are some straightforward ways to protect yourself and your practice:
- Always maintain professionalism: Even informal channels should remain professional. Avoid casual or offhand remarks about client matters or client instructions.
- Document carefully: Clear and concise notes about decisions, advice given, and steps taken can help protect you. If your conduct is challenged later, clear notes can provide important context and justification.
- Understand your tools: Be aware that platforms like Slack or Teams preserve messages. Assume these messages might someday be reviewed in court or by opposing counsel.
While lawyers naturally trust that their internal communications are private, that trust is limited. The moment a former client decides to sue, the rules change drastically. Recognizing that privilege can fall away entirely should encourage us to maintain clarity, professionalism, and careful documentation, even in informal settings. Being mindful of this reality now can protect you and your practice down the road.
Thank you for reading!
Sumit Malhotra