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Email and Third Party Communication Impact on Attorney-Client Privileges

BY IN General

When an attorney and the client discuss the client’s case, the conversation between the attorney and client is attorney-client privileged, which means it is confidential. Logically, this makes sense. An attorney needs his or her client to be honest about the situation so that the attorney can anticipate responses or prepare a defense when bad facts are raised.

When the attorney and client speak in the attorney’s conference room, it’s quite easy to keep the conversation confidential. It becomes much more difficult when the conversation is via email.

Emailed correspondence between attorney and client is privileged. However, the client can take some actions which will waive this attorney client privilege. Once the attorney-client privilege is waived, other parties, including the opposing party, may obtain or subpoena the confidential emails between attorney and client.

For example, if you use your employer provided email address, your communication might not be considered privileged, which may give other persons the right to access your communications. You might wish to provide us with a personal email for use in electronic communications, instead of a company provided address. You may also want to consider accessing and originating emails through the use of only your personal computer and not a business or employer computer. If you have been using an employer’s or your business’s email address, you should contact your attorney right away and provide a better email address. It takes very little time to create a new (personal) email account, and it will save you significant attorney fees if you do not have litigate the release of what should have been attorney-client privileged emails.

There is no attorney-client privilege protection when communications are intentionally provided to a third-party. This means that any communications your attorney has with you while a family member or friend is present or with a family member or friend directly are not covered by attorney-client privilege. So, when you use someone else’s email address to communicate with your attorney or CC someone else on emails with your attorney, you may be waiving attorney-client privilege.

We understand that you may want to lean on your family members during this difficult time but allowing your family members to have access to your communications with your attorney raises potential attorney-client privilege issues. For example, if the opposing party would like to subpoena your mother’s emails, and you have been using her email address to communicate with the firm, all those communications may be obtained by the other party. However, if the opposing party tries to obtain emails from your personal email account, we can prevent him or her from obtaining any emails to or from your attorney by claiming privilege.