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Effective E-mails, Part 3: Preserve the Privilege

By Alexander T. MacDonald

 

E-mail is a fixture of modern legal practice. It has overtaken the memo, the letter, and even the phone call as the dominant method for delivering advice. And it’s no wonder why: e-mail is fast, accessible, and convenient. But it’s also risky––often in ways that people don’t expect. In fact, the same features that make e-mail so attractive also make it harder to preserve the attorney–client privilege.

 

The problem begins with the prevailing attitude toward e-mail: nonchalance. Most clients wouldn’t dream of passing around a confidential letter or memo. Yet they won’t think twice about forwarding an “e-mail from legal” to anyone who’s interested. And if the e-mail reaches people outside a corporate client’s “need to know” group, it is no longer being held “in confidence.” That means no privilege.
 

Once an e-mail has spread too far, you can’t reel it back in. But you can take steps to keep locked down in the first place. Warn your clients when an e-mail is privileged and shouldn’t be shared. And tell them why. Clients are much more likely to keep an e-mail under lock and key when they know the consequences. They don’t want any more than you do to see your message show up in a courtroom.
 

But clients aren’t the only ones who spread e-mails too widely; lawyers can also be too liberal with the cc: bar. You see this mistake most often in in-house law departments. In-house lawyers often pile up the cc: bar, erring on the side of overinclusion. But overinclusion puts the attorney–client privilege at risk. Communications are privileged only when they’re between the attorney (or an agent) and client (or prospective client). Include people who don’t qualify as “clients” for that particular matter, and your e-mail will become fair game in discovery.
 

The solution is to choose your recipients sparingly. Copy only the people who really need to see the e-mail—preferably, only the client who requested the advice. With every name you add to the cc: bar, you increase your risk exponentially.
 

Another mistake lawyers make is to sprinkle their e-mails with business advice. Again, this mistake is most common in in-house law departments, where business and legal advice often go hand-in-hand. To make the problem worse, business and legal advice can be hard to distinguish. Lawyers often don’t realize they’ve given business advice until opposing counsel demands it in discovery.
 

The best way to avoid this problem is to split your business and legal advice into separate e-mails. While the line can be hard to draw, you can use this rule of thumb: Are you telling the client, even indirectly, what you think a court would do in a given situation? If the answer is yes, you’re probably giving legal advice. If the answer is no, you might be giving business advice. Split that advice into a separate e-mail. And just to be safe, make clear which e-mail contains the legal advice. Say it clearly; subtlety wins you no bonus points. For example, “You asked for my legal advice about the union’s latest proposal . . . .”
 

You can also use a “confidential” tag, but don’t overdo it. Plaster “privileged and confidential” into every e-mail you write, and you’ll dilute the tag’s value in any later dispute. Instead, use a tag only when it really applies. That will lend it more credibility and force, and thus help you better protect your e-mails.
 

And you’ll need all the help you can get. In the modern law office, e-mail is the dominant form of communication. That’s a good-news and a bad-news story. The good news is that communication is quicker and more convenient than ever. The bad news is that convenience breeds carelessness, which in turn breeds risk. It’s your job to minimize that risk. Counsel your clients about the value of discretion, and make sure you practice what you preach.
 

Alexander MacDonald is a 2012 graduate of the William & Mary School of Law. He works in the Office of the General Counsel of the United States Postal Service. He can be reached at amac2644@gmail.com.