"The issue of waiver arises most commonly when a communication is
witnessed by a third party or where the client does not intend the
communication to be confidential. The mere presence of a third party
will likely prevent the creation of the attorney-client privilege.
Continuing with our hypothetical characters, suppose that Smith and
her stockbroker meet with Jones to discuss the suspect sale of stock.
Jones represents Smith in connection with the sale, but not the
stockbroker. During the course of the meeting, Smith discloses sensitive
information. Under this scenario, the privilege is likely waived and
the information conveyed does not enjoy protection from disclosure.
What if the communication is disclosed to a third party after a
privileged exchange between attorney and client? Has the privilege been
waived? Possibly. Unlike a client's constitutional rights, which can
only be intentionally and knowingly waived, the attorney-client
privilege may be waived by a careless, unintentional or inadvertent
disclosure.27
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