Introduction
An significant security is the attorney-client privilege to encourage companies to obtain transparent and frank legal advice in conducting their corporate affairs. If the protection applies, unless the client waives the privilege, statements and records that would usually be subject to review and discovery remain confidential. The right allows clients to openly communicate with their lawyers for confidential advice and may, thus, support clients before they even occur to prevent legal issues or conflicts. However, privilege becomes even more important in the unfortunate situation in which a dispute grows into the need for a more formal settlement as it protects from disclosure records that detail legal strategies or explore strengths and weaknesses. It is especially important to consider the basic concepts of attorney-client privilege and to be mindful of the specific challenges that e-mail poses in defending the privilege at a time when e-mail communications are economical, convenient, and prevalent.
Definition
The right is narrowly construed because the attorney-client privilege is an exception to the general principle of open disclosure of facts during litigation. In order to be protected by the privilege, it is important to communicate:
between an attorney and a client
in trust
in order to locate, receive or offer legal assistance to the client.
The existence of or disclosure to a third party would usually prohibit the right from being attached. Some exceptions exist. For example, if a third party is required for the full representation of a client by the attorney, the right can still be attached. A necessary third party may be an accountant hired by the solicitor to assist in reading books, or a paralegal investigating a legal problem. Likewise, in order to communicate with the solicitor, a client can require the presence of a translator. Employees of a company represented by the solicitor are therefore excluded from the concept of ‘third party’ as long as the employees talk about matters within their scope of employment and acknowledge that they are being asked for the purpose of seeking legal advice for the corporation. However, the general rule remains that a third party which is not allowed to be represented will preclude the right from being added to it.
Communications protected by the privilege, unless the client waives the privilege, remain confidential. The privilege is assumed to be waived if a contact is shown or replicated to a third party not protected by the privilege. Waiver may occur on a voluntary basis, such as when a client instructs the lawyer to disclose information to a third party (such as in arbitration negotiations), or when the contact is revealed by the client itself. There may also be an inadvertent waiver. If, for example, during a packed conference, a client had a letter from her lawyer sitting out in plain view and a third party saw it, the right of that letter could be considered waived. To protect the confidentiality of her protected correspondence, a client must take appropriate measures.
It is also a simple and fast way for an attorney and customer to interact, just as e-mail has become integrated into everyday business activities. Like all other communications, e-mails can become privileged. While the problem of e-mail protection is outside the reach of this paper, the right of attorney-client has traditionally been held to extend to e-mail communications. As such, e-mail is often subject to the same waiver rules and e-mail communications are, for the following reasons, especially vulnerable to an accidental waiver of privilege.
E mail communications
E-mail is quickly exchanged first. The “forward” button is a simple way to convey with minimal effort a lot of details. The receiver will receive a string of e-mails with the stroke of one key that includes not only your instructions, but the background and context of the problem. However, if an e-mail from your attorney is included in that series, if the receiver of the e-mail string is a third party, what might have once been a confidential contact might now be open for discovery during litigation. An e-mail from your solicitor is privileged, but the e-mail is no longer a confidential contact until you forward it to someone not shielded by the privilege.
With e-mail software containing an auto-text function which automatically completes e-mail addresses, inadvertent waiver is especially a danger. This convenient feature, especially if you have more than one interaction with similar e-mail addresses, is dangerous for the attorney-client privilege. You may assume that you are sending your damage estimate to John White, the paralegal of your solicitor, but your machine has actually taken the liberty of sending it to the first “John” in your recent directory, John Smith, the subcontractor you are considering suing.
Tips for minimizing risks
It can go a long way to secure your sensitive correspondence just to be mindful of the comparatively fragile existence of privilege in e-mail. In order to minimize the risk of unintentionally waiving privilege, there are also a few steps to take:
Take care not to forward e-mails from your solicitor, as noted above. When your attorney e-mails you with advice about how to handle a case, start a new e-mail to provide the right people with guidance.
Similarly, it is generally best not to directly mention that when seeking the advice of your solicitor. Instead of writing, “My attorney said that before I sign anything, I should study the issue of my liability for negligence on the job,” just request the details you need.
Know that facts are not privileged, so you can exchange truthful data with others without worrying about your privilege being waived. It is the advice and counsel of your attorney that is covered. If you disclose that, you can unintentionally waive the right of that interaction.
If sending e-mails is a convenience that you should not overlook, at least ensure that only the e-mail that is important to the recipient is forwarded. That way, you are less likely to send privileged information accidentally. Likewise, if your e-mail program uses an auto-text feature for e-mail addresses, be especially cautious. If possible, consider deactivating this function and double-check the recipient list before sending out an especially sensitive message.
Finally, if you want to exchange data and you are concerned that your right might be waived, it is always a good idea to consult your lawyer. She might be able to verbally convey truthful information to you in such a way as to prevent waiver questions.