Emailing Clients at Work May Imperil Privilege

Emailing Clients at Work May Imperil Privilege

Lawyers take e-mailing clients for granted. But there may be hidden risks in sending e-mails to clients at work.

It is probably fair to say that most lawyers have grown accustomed to the convenience of emailing clients. Less disruptive than phone calls, more efficient, creates documentation of conversations—hard to believe anyone could ever practice law without email.

From an ethics perspective, there is generally no problem sending confidential or privileged communications through cyberspace; several ethics authorities (including the ABA) have said that email does not even need to be encrypted. Although one has to be careful about inadvertently sending a confidential email to the wrong person, that problem is created by the sender, not by email as a communication tool.
 
Work Zones. There has been a growing awareness—and a line of cases—about the risks of sending privileged emails back and forth with clients who are using their employer-provided email accounts. Depending on how diligent the employer is about announcing and reminding its employees of its policies, an employer can successfully decree that anything done on the employer’s computer (including laptops) is subject to review by the employer and carries no expectation of privacy. As noted in a previous post, that can apply to otherwise confidential and privileged emails between an employee and his or her lawyer.

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ERIC T. COOPERSTEIN has a solo practice devoted to ethics consulting and representation, a product of his work as a former Senior Assistant Director of the Minnesota Office of Lawyers Professional Responsibility, where he worked from 1995 to 2001. Eric defends lawyers against ethics complaints, provides advice and expert opinions, and represents lawyers in fee disputes and law firm break-ups. He is also a qualified neutral and a frequent writer and speaker on ethics and law practice issues. Eric is currently vice-chair of the MSBA Rules of Professional Conduct committee and a member of the Association of Professional Responsibility Lawyers. A frequent contributor to Lawyerist.com, Eric also maintains his own website at www.ethicsmaven.com.