The Working Dog Waiver to the Attorney Client Privilege

10/07/2013 // Justice News Flash: Featured Column // Kathleen Scanlan // (press release)

The concept of the attorney client privilege can be traced all the way back to the Roman Republic. The privilege has been a cornerstone of English law, and in turn, American law for centuries. As one court aptly described it, the privilege guarantees “that one who seeks advice or aid from a lawyer should be completely free of any fear that his secrets will be uncovered.” United States v. Grand Jury Investigation, 401 F. Supp. 361, 369 (W.D. Pa. 1975). The privilege is not absolute, however. If a client seeks the attorney’s advice to assist or aid in a crime, for example, the crime fraud exception may apply.

Attorney client privilege may also be waived. If the attorney and client were not alone when the communication took place, courts have found that neither the attorney nor the client had any expectation in the confidentiality of their communication and thereby waived the privilege. So this raises an important question.

What happens when the third party sitting in on communications is a dog? Statistics show a huge increase in the number of dogs in the workplace. About 1.4 million owners take some 2.3 million dogs to work every day, according to an American Pet Products Association survey in 2011. That is triple the number from five years earlier. Today, employers like Amazon and Google are dog-friendly. Even Congress has dog-friendly policies. President Obama now has two dogs that get to spend time in the Oval Office. In July, a New York appellate court upheld the use of a therapy dog in court to help calm a victim while testifying. With this obvious trend lawyers are increasingly likely to find canines in their client’s offices. And clients are just as likely to find dogs in their lawyer’s office. [Disclosure – there is a dog under my desk] These working dogs are clearly privy to valuable attorney client communications. If my dog was ever deposed she would tell you she is a person. Might there be a working dog waiver to attorney client privilege?

Countless billable hours and judicial resources could be spent to clarify this evolving area of the law even as these dogs “play” critical roles at their workplaces. There’s clearly an argument to be made, and there’s undoubtedly a resourceful lawyer out there willing to make it. After all, didn’t the United States Supreme Court decide a case last term on the use of drug-sniffing dogs, ruling that the Fourth Amendment limits the ability of police to use the animals near a home? See, Florida v. Jardines. That’s how it all starts with legal arguments. First, their noses. Next, their ears. That’s why we need clarification that there is no working dog waiver to Attorney Client Privilege. Both the attorney and the client have an expectation of confidentiality for communications in the presence of a working dog. No exceptions. No Supreme Court arguments. Maybe Congress should take this up between budget battles; they do have dog-friendly policies in their workplace, after all. Or maybe there needs to be a “We the People” petition. Surely a lawyer president with two dogs could get behind this important clarification of our jurisprudence.

Attorney Kathleen Scanlan

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