The attorney-client privilege permits confidential communication between an attorney and her client.  The objective is to encourage open communication, which permits an attorney to provide thorough, competent and complete advice.  Generally speaking, only a client can waive the privilege, but as found by the Virginia Supreme Court in Walton v. Mid-Atlantic Spine Specialist, PC, et al., a client’s inadvertent disclosure of a privileged communication may operate as a waiver of the attorney-client privilege.

In this Williamsburg medical malpractice case, a defendant doctor wrote a letter to his attorney calling into question his medical diagnosis he gave to his patient. The doctor kept this letter in a separate notebook. During discovery the defendant medical practice used a third party service to copy document requests. The letter was provided inadvertently to the plaintiff.

Although the defendant claimed that he did not produce the letter or permit anyone else to produce the letter, the Court found that the defendant did not take adequate protection to protect the letter. The Court noted that the notebook in which the letter was found was not marked as confidential or privileged. Furthermore, the Court held that the client did not take prompt action following disclosure.

The Virginia Supreme Court considered five main factors in determining whether the inadvertent disclosure waived the client’s privilege.  The Court looked at:  (1) the reasonableness of the precautions to prevent inadvertent disclosures, (2) the time taken to rectify the error, (3) the scope of discovery, (4) the extent of the disclosure, and (5) whether the party asserting the claim of privilege or protection for the communication has used its unavailability for misleading or otherwise improper or overreaching purposes in the litigation making it unfair to allow the party to invoke confidentiality under the circumstances.

As a start, clients should maintain attorney-client privileged communications in a separate file or notebook and clearly mark the file or notebook and each communication as “CONFIDENTIAL-ATTORNEY-CLIENT PRIVILEGED COMMUNICATION.”  Then, if an inadvertent disclosure is made, the client should contact her attorney as soon as possible to determine a plan of action to restore the attorney-client privilege.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

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In our ever crowding residential areas, more of us experience the situation in which the limbs of a neighbor’s tree overhang our property line. Most of the time, these limbs do not pose us any concern, but questions do arise as to whether we have the right to prune our neighbor’s trees. In the past,the Virginia rule has been that you could trim the branches of your neighbor’s tree up to your property line. However, the Virginia Supreme Court expanded that long-standing rule when it decided that an owner whose property was damaged by the root system of a neighbor’s tree may be entitled to more relief than simply cutting back the roots and overhanging branches to the property line.

Continue reading “Can I cut down my neighbor’s tree when its branches overhang my property?”

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We wrote earlier about a Charlottesville case in which the court analyzed the duty to disclose for a seller of residential real estate. Although Virginia follows the general rule of caveat emptor, the court ruled that the seller, who was also a licensed real estate agent, may have violated a duty to disclose material adverse facts.

The purchasers alleged two other counts, alleging that the seller failed “to disclose the adjacent drain problems and history of flooding, constituting both fraudulent misrepresentation and constructive fraud.” The court dismissed those claims while providing a nice, succinct history of the law of fraud in the sale of a home. This blog post reviews the general rules of fraudulent misrepresentations in residential real estate sales.

Continue reading “Part 2 of The Rule of Caveat Emptor in the Sale of Real Estate vs. a Seller’s Duty to Disclose”

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A case out of Virginia Beach underscores the deviousness of those who engage in identity theft. As reported in Virginia Lawyers Weekly, Guy Gugliotta owned two lots in Virginia Beach. A local realty company maintained contact with Gugliotta via mail in case he was interested in selling the lots. In 2012 someone purporting to be Gugliotta notified the tax assessors office to change the mailing address for tax bills. Then they notified the realty company that they had decided to sell the lots. The lots were listed for sale and in August, a purchaser made an offer.

The seller documents were handled via mail with the fraudulent seller executing documents in Florida and sending them to the closing agent. Deeds to transfer property require that the seller’s signature be notarized so surely this was the end of the road for the fraudster.

But no, not only did the thief take the identity of the owner; he also took the identity of a notary public in Florida. The notary public declared under oath that it was not his signature and that he had never notarized the documents.

Continue reading “A New Twist on Identity Theft and Fraud: How can Realtors, Lenders, Title Companies and Law Firms Protect Your Clients and Yourselves?”

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It is relatively routine for developers or “declarants” to include arbitration provisions into the declaration of restrictive covenants recorded to establish a common interest community. Generally, arbitration clauses are preferred by developers for a variety of reasons including avoiding a jury and having a say in the choice of the fact-finder. However, those decisions made by the developers have long lasting effects upon homeowner boards following transition, because it is difficult for a board to effect a change in the documents.

Continue reading “Virginia Supreme Court upholds arbitration award granted to homeowners who sued their HOA”

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We frequently are asked whether volunteer board members can be civilly liable for actions taken while a board member. This issue is of serious concern because lawsuits tend to be over inclusive, naming every possible defendant in the initial complaint. Why sign up as a volunteer board member if it could bankrupt you?

Continue reading “What Does It Mean to be on the Board of Directors of your HOA? Potential Liability (Part 2 of a Series)”

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A Virginia Beach jury found a condominium association liable for failing to permit unit owners an opportunity to inspect and copy association records. Not only must the condo board allow inspection and copying, they must pay for an audit of the association records and pay $50,000 for the unit owners’ attorneys’ fees.

These questions arise frequently. This blog post reviews the various Virginia statutes that address the right to inspect and copy records for companies, HOAs and condominium associations.

Continue reading “Requests to Inspect and Copy Community Association or Company Records: Should it be this complicated?”

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Sometimes commercial tenants, unable to stay current with their lease obligations, decide to close up shop and abandon their leased premises. In those circumstances, commercial landlords need to know their options. This blog post discusses a commercial landlord’s options when a commercial tenant abandons its lease.

Continue reading “My Commercial Tenant is gone . . . should I re-enter the Property?”

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Well, we have written about protecting the attorney-client privilege and about safe emailing tips when emailing your attorney. Although we thought we had it pretty well covered, a recent decision from a California appellate has given us something more to think about.
Continue reading “Using your business’ computer to email your attorney may be a bad idea”

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Scott is a 2014 graduate of the William and Mary Law School and newly admitted member of the Virginia State Bar. In 2010, Scott became the first college student to be elected to the Williamsburg City Council. Scott has worked diligently with City Council to develop the downtown area and improve the relationship between the College of William and Mary and the City of Williamsburg. Scott has been working for Tarley Robinson since 2012 and will support the firm’s practice in Land Use, Zoning, Homeowner Associations and Real Estate Strategies.

Welcome, Scott!