The days of unencrypted email communications being protected under the attorney/client privilege may be numbered. The latest evidence of this comes from New York, where Judge Charles W. Ramos ruled last fall that emails from a doctor to his lawyer sent via a hospital's business email server weren't privileged after they were discovered by the hospital (source: Wall Street Journal Law Blog).
Judge Ramos rejected the privilege largely because, he found, the plaintiff didn’t have any real expectation that the messages were private. The hospital had a policy of prohibiting email for personal purposes, and that policy was disclosed to employees.
This is another shot across the bow to law firms. When courts have waived the privilege in situations like the above, it has been due to a lack of expectation of privacy. There have been similar cases in the past (Kaufman v. SunGard Invest. Sys., 2006 U.S. Dist. LEXIS 28149 (D.N.J. 2006)), In the bankruptcy proceeding In re Asia Global Crossing, Ltd., 324 B.R. 503 (Bankr. D.N.Y. 2005), the Southern District of New York held that email between an attorney and client left on the corporate email system waived the privilege. The court held found that the following four factors should be taken into consideration in that analysis:
(1) does the corporation maintain a policy banning personal or other objectionable use,
(2) does the company monitor the use of the employee's computer or e-mail,
(3) do third parties have a right of access to the computer or emails, and
(4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?
What if the client was communicating to the attorney with encrypted email? Does that offer the client an “expectation of privacy?”
In order for a client to invoke the protections of the attorney client privilege, four elements are required:
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the client is seeking legal advice;
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from a professional in his capacity as an attorney;
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the communication relates to the legal advice; and
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the confidential communication is between the client and the attorney.
In Nat'l Econ. Research Assocs. v. Evans, 21 Mass. L. Rep. 337 (Mass. Super. Ct. 2006), the Massachusetts Superior Court held that when the employer did not specify in its manual that it could monitor email and the employee took “reasonable” steps to protect the emails (the court considered deleting the emails and running a disk de-fragmentation program sufficient), then the privilege isn’t waived. Ernest Sasso, on his firm site, wrote a comprehensive article regarding email and client confidentiality which supports the argument that encrypted email would make arguments for waiver of privilege moot. To my knowledge, the issue of encrypted mail being challenged to waive privilege has still not been litigated (please correct me if I am wrong).
If you are communicating via email to clients regarding your case, stop it now. Or, take evasive action. Use encryption in all communications with clients expected to contain privileged information. In my opinion, you have a stronger argument for an expectation of privacy even with minimal encryption (read: ease of use and implementation) than with none at all. Plus, the cost of software (for the client end) can be billed to the client as an up-front expense if the client desires to communicate via email.
The above is just a cursory look at the law to alert you to the potential danger of communicating with clients via unencrypted email. Logon to Lexis.com to research the above in more detail. And to avoid being the next victim, encrypt now.
Some encryption providers:
The above isn’t even close to comprehensive. Have your IT staff research solutions that will work with your firm.
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Posted
Fri, Feb 1 2008 3:00 AM
by
Admin