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The attorney-client privilege is an important protection to enable businesses to seek open and frank legal advice in conducting their business affairs.  When the privilege applies, statements and documents that normally would be open to inspection and discovery remain confidential, unless the client waives the privilege.  The privilege enables clients to freely consult with their attorneys for confidential advice and can, therefore, help clients to avoid legal problems or disputes before they even arise.  However, in the unfortunate situation that a dispute grows towards the need for a more formal resolution, privilege becomes even more crucial as it protects from disclosure documents that outline legal strategy or that explore strengths and weaknesses.  In a time when e-mail communications are economical, convenient, and prevalent, it is particularly important to understand the basic principles of attorney-client privilege and to be aware of the unique problems that e-mail presents in protecting the privilege.

Because the attorney-client privilege is an exception to the general concept of open disclosure of evidence during litigation, the privilege is strictly construed.  In order to be covered by the privilege, a communication must be made: 1) between an attorney and a client, 2) in confidence, and 3) for the purpose of seeking, obtaining, or providing legal assistance to the client.

Generally, the presence of or disclosure to a third party will prevent the privilege from attaching.  There are some exceptions.  For instance, if the third party is necessary to the attorney’s complete representation of a client, the privilege may still attach.  A necessary third party might be an accountant that the attorney has hired to help interpret books, or a paralegal researching an issue of law.  Similarly, a client might require the presence of a translator in order to communicate with the attorney.  Also exempt from the definition of “third party” are employees of a corporation that is represented by the attorney, as long as the employees are speaking about things within their scope of employment and understand that they are being questioned for the purpose of obtaining legal advice for the corporation. The general rule remains, however, that a third party who is not necessary to the representation will prevent the privilege from attaching.

Communications covered by the privilege remain confidential, unless the client waives the privilege.  Once a communication is shown or repeated to a third party not covered by the privilege, the privilege is deemed to be waived.  Waiver can occur voluntarily, such as when a client instructs the lawyer to reveal information to a third party (such as in settlement negotiations), or when the client herself reveals the communication.  Waiver can also occur inadvertently.  If, for instance, a client had a letter from her lawyer sitting out in plain view during a crowded meeting and a third party saw it, the privilege may be deemed waived as to that letter.  A client must take reasonable steps to preserve the confidentiality of her privileged communications.

Just as e-mail has become incorporated into daily business activities, it is also a convenient and quick way for an attorney and client to communicate.  E-mails may become privileged just like any other communications.  Although the issue of the security of e-mails is beyond the scope of this article, the attorney-client privilege generally has been held to apply to e-mail communications.  As such, e-mail is also subject to the same rules of waiver and, for the following reasons, e-mail communications are particularly susceptible to the unintentional waiver of privilege.

First, e-mail is easily shared.  The “forward” button is an easy way to convey a lot of information with minimal effort.  With the stroke of one key, the recipient can receive a string of e-mails that contain not only your instructions, but the history and context of the problem. However, if an e-mail from your attorney is included in that string, what once may have been a privileged communication may now be available for discovery during litigation if the recipient of the e-mail string is a third party.  An e-mail from your attorney is privileged, but once you forward it to anyone not covered by the privilege, the e-mail is no longer a confidential communication.

Inadvertent waiver is particularly a risk with e-mail software containing an auto-text feature that automatically completes e-mail addresses.  This convenient feature is perilous to the attorney-client privilege, especially if you have more than one contact with similar e-mail addresses.  You may think you are sending your estimation of damages to John White, your attorney’s paralegal, but in fact, your computer took the liberty of sending it to the first “John” in your recent directory—John Smith, the subcontractor you are considering suing.

Just being aware of the relatively frail nature of the privilege in e-mail can go a long way towards protecting your confidential communications.  There are also a few precautions to take in order to lessen the chance of inadvertently waiving privilege:

  • As noted above, take care not to forward e-mails from your attorney.  If your attorney e-mails you with advice about how to handle a situation, start a new e-mail to give instructions to the proper people.
  • Similarly, when following your attorney’s advice, it is usually better not to explicitly state that.  Instead of writing, “My attorney said that I should research the issue of my liability for negligence on the job before I sign anything,” just request the information that you need.
  • Remember facts are not privileged, so you can share factual information with anyone without worrying about waiving your privilege.  It is your attorney’s advice and counsel that is protected.  If you reveal that, you may be inadvertently waiving the privilege over that communication.

If forwarding e-mails is a convenience you cannot forego, at least be sure to forward only the e-mail that is relevant to the recipient.  That way, you are less likely to inadvertently send privileged information.  Likewise, be particularly careful if your e-mail software employs an auto-text feature for e-mail addresses.  Consider deactivating this feature if possible and double check the recipient list before you send out a particularly sensitive message.

Finally, if you want to communicate information and you are worried that it might waive your privilege, it is always a good idea to consult your attorney.  She may be able to communicate factual information orally for you in such a manner as to avoid concerns of waiver.

About the Author:  Julie M. McGoldrick is an attorney with the Los Angeles office of Wickwire Gavin, P.C., and focuses her practice on construction law matters.  She may be reached at 21      3-688-9500 or at jmcgoldrick@wickwire.com

ConstructionRisk.com Report, Vol. 7, No. 6 (Oct 2005)

Copyright 2005, ConstructionRIsk.com, LLC