Email Security and Attorney-Client Privilege

Email Security and Attorney-Client Privilege

The 2008 American Bar Association (ABA) Legal Technology Resource Center recently completed a survey of how the legal profession uses technology. In conjunction with an outside research firm, the Center surveyed the legal profession in January through May 2008. The results of the survey indicated that the vast majority of the respondents send confidential or privileged communications and documents to clients via email. Only about six percent said that they never did so. How many of the remaining 94% have considered the issue of whether the use of an electronic medium that allows for interception of the communication can be held to have waived the attorney-client privilege?

With the increase in the use of email as a form of communication, attorneys should consider the implications to their clients as to whether privilege will apply to discovery of these communications or introduction of them as evidence in court. Moreover, attorneys must realize that communicating via this method calls into play ethical considerations and the rules of professional responsibility. An attorney should consider using encryption, should disclose the possibility of interception to clients, and should investigate whether his or her state has addressed the issue of the use of electronic communication in relation to privilege.