Obviously the use of email has changed many aspects of our world, including the practice of law. As with all new technology, we sometimes learn hard lessons. The attorney-client privilege is the foundation of effective communication between counsel and clients. Only a client can waive that privilege. Although email has far more positives than negatives, to protect attorney-client communications, use these three tips.
1. Never forward emails from your attorney. One of the easier ways to waive attorney-client privilege is to forward your attorney’s email. Not all forwarding leads to a waiver of the privilege, but before you forward the email, make sure your attorney is aware and approves.
2. Be care of using “bcc” or blind copies on emails. If your attorney sends you a blind copy of email communication, ask her to forward a “sent” email instead. It seems so easy to use bcc to “secretly” send a courtesy copy of your email to another recipient. There are many reasons to do this, but one big drawback. If one of the bcc recipients responds by clicking “reply all” then whatever advantage you obtained by using bcc is lost (and possibly so is the attorney-client privilege). Which leads me to the next tip:
3. Never use “reply all.” If you want to respond to an email sent to a number of recipients, type in each email address for each recipient you want to receive your response. Maybe it takes longer, and maybe you will miss somebody, but those negatives are far outweighed by refraining from an habitual use of “reply all.”
Tarley Robinson, PLC, Attorneys and Counsellors at Law
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