The attorney-client privilege is, in its broad outlines, familiar to most people. The privilege belongs to the client and covers confidential communications by the client to his or her attorney for the purpose of obtaining legal advice. The privilege also covers the legal advice given by the attorney to the client in response to the client's request. The effect of the privilege is to protect these confidential communications from, for example, forced disclosure in a lawsuit. However, because the privilege depends upon the communications remaining confidential, it may be lost or "waived" if the communications are made in the presence of a third party or otherwise disclosed to a third party.
In the not too distant past, preservation of the confidentiality of these privileged attorney-client communications was relatively routine and easy to protect. Many of these communications were documentary in form, legended as "confidential" and "privileged", and placed in files marked "confidential" or "attorney-client communications". The making and dissemination of copies of these confidential and privileged documents were within the control of the custodian of the files. This control reduced significantly the risk that the document or copies of the document, through inadvertence or otherwise, might be distributed to third parties or, in the case of large organizations, to employees who had no need to be involved in the privileged communications because the subject matter of the communications fell outside the scope of their employment duties and responsibilities. The risk of "waiving" or losing the privilege that attached to these communications was, therefore, manageable.
Advances in information technology have greatly complicated the protection of privileged attorney-client communications. Email communications have, to a large extent, replaced documentary communications. Discrete attorney-client communications, particularly in large organizations, not infrequently become part of lengthy email strands or "strings", which consist largely of non-privileged, business communications. These email "strings" may now be forwarded to numerous recipients with one click of a computer mouse. These features of modern-day communications greatly increase the risk of attorney-client communications being sent to third parties or to employees who are outside the scope of the privilege and, therefore, greatly increase the risk of "waiving" or losing the privilege that would otherwise attach to the attorney-client communications buried within the email "string".
It has become routine for attorneys to place on all emails a footer or tag which characterizes the communication as privileged and requests unintended recipients to destroy and/or return electronic documents without reading them. These footers are usually in small print. They do little or nothing to alert a client that by forwarding the email or by including it in a string of emails any privilege attached to the communication may be waived and lost.
These risks may be significantly reduced in several ways. First, an attorney should take the time to discuss with clients the risks involved in communicating privileged information via email. Second, the attorney should clearly and at the beginning of an electronic communication to a client identify the communication as privileged. This can be accomplished by creating a conspicuous legend similar to the following: "PRIVILEGED ATTORNEY-CLIENT MATERIAL--DO NOT FORWARD." Third, the client can adopt and implement a requirement that all attorney-client email communications must bear a legend identifying them as such and that careful consideration must be given before forwarding these communications. Fourth, given the fallibility of human nature, computer programs and applications can be installed which will prevent privileged material so legended from being forwarded by the recipient. Although the protection afforded by these programs and applications is not absolute, circumvention requires effort and, for this reason, these devices should serve to prevent inadvertent or unintended dissemination of privileged materials.
Although these measures may seem burdensome, new Court Rules and discovery techniques relating to electronic storage of information make it increasingly likely that emails and other electronically stored documents that relate to litigation strategy and legal advice will become available to adversaries. And in non-litigation matters, legal advice not intended to be transmitted to employees and competitors may, through inadvertence or otherwise, be so transmitted and lose the protection of the attorney-client privilege.
We recommend public entities consider adopting guidelines for the use of e-mails, texting or other electronic communication to avoid possible violations of the Open Public Meetings Act. Please contact our office for help drafting this policy
If you would like to discuss this Legal Update, please contact:
Robert E. Levy, Chair, Litigation Group:
(201) 896-4100 or
Charles H. Friedrich, Counsel:
(201) 896-4100 or