March 2003  Volume 29, Issue 2
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As I Was Saying With Wendy Leibowitz
Did That E-Mail Waive Privledge?
New standards are emerging as attorney-client privilege problems proliferate electronically.

Don't talk on elevators. That was what I knew about the attorney-client privilege when I started in the law. And I learned about the "Elevator Rule" only when I made the mistake of talking on an elevator and was glared at by a senior associate.

Although most lawyers are more knowledgeable about preserving the attorney-client privilege than I was then, many clients are not so savvy. Clients may believe that anything they say to a lawyer is protected from disclosure, as if lawyers were priests hearing confessions. And a disturbing number of lawyers are still very fuzzy on privilege basics as well.
Now, add e-mail to the mix. E-mail is a common means of communication between lawyers and clients on all kinds of subjects today. Token disclaimers at the bottom of the e-mail ("This message may be privileged, blah, blah") may promote a false sense of security without educating or protecting anyone. When you add in electronic billing and extranets, the possibility of inadvertently waiving the attorney-client privilege looms large.

I wish there were an interesting, sexy way of writing about the "inadvertent waiver of privilege," but there isn't. ("Practice safe communication online"?) Just trust me-inadvertent waiver is an important topic, especially when you use e-mail.

Privilege Basics: Let's Review
The attorney-client privilege protects a communication between privileged persons; made in the reasonable expectation of privacy; for the purpose of procuring legal counsel. Take each one in turn.

  • Privileged persons: Legal advice to someone who is not your client is not protected. Over the years, court decisions and state bar ethics opinions have extended the class of "privileged persons" to include secretaries, paralegals and what's-his-name who delivers your faxes and handles your photocopying. But the boundaries remain blurry. Does the class automatically include, for example, independent technology consultants who might have access to e-mail on your servers?
  • In private: If you don't take reasonable steps to keep the communication private (that is, if you talk on an elevator), you may waive the privilege.
  • For the purpose of procuring legal advice: Business advice and private gossip to a client is not protected. Neither are all those jokes that you e-mail to your favorite client.

To make matters more complicated, the client, not the lawyer, has the authority to assert the privilege. As a practical matter, however, the lawyer, as the client's agent, can assert the privilege.

Enter E-Mail
The ease and frequency with which e-mail can be forwarded makes it more likely than not that anything you e-mail to a privileged party might be forwarded to a non-privileged party, thus breaching the privilege. So, is e-mail a "private" communication?

A handful of court decisions have stated that if reasonable steps were taken to ensure the privacy of e-mail, meaning that the messages were sent wholly within a particular network, then the messages are privileged. See United States vs. Keystone Sanitation Company, Inc., 885 F. Supp. 672 (M.D. Pa. 1994) (e-mail between attorneys at the same law firm over the firm's LAN justified a reasonable expectation of privacy), and United States vs. Maxwell, 42 M.J. 568, 576 (A.F. Crim. App. 1995) (e-mail between users on the America Online service is more private than communication over the Internet).

But how many of us know for sure whether a court will consider our wide area network or extranet to be reasonably private? And when we open an e-mail from a client that might have been sent from a laptop in an airport, do we stop to question whether the e-mail traveled over "private" lines? The problem with e-mail is that it feels private and, thus, invites more private disclosures than a fax or even a phone call. But is an expectation of privacy in an e-mail reasonable, given that we all know how easily it can be forwarded? Or is it like talking on an elevator?

Finally, although the privilege protects only legal advice, e-mail tempts us to forward all kinds of junk to clients, mixed in with sound legal guidance. Must a lawyer segregate legal advice from family news and silly puns? This question is easy-the answer is yes. (Send your legal counsel separately from the junk, and flag it appropriately: " PRIVILEGED LEGAL ADVICE.")

If you are confused about best practices here, you are not alone. The courts and ethics committees have made a dog's breakfast out of privilege law. And a few recent court cases dealing with the inadvertent waiver of privilege during discovery show that there is a lot of sloppiness in attorney-client communications and no agreement among the courts about which of varying standards to apply. Listen up, people! It's time to get serious about all communications and the attorney-client privilege.

But there is a light at the end of the tunnel: E-mail, with all its flaws, might be helping the courts and state ethics committees create reasonable privilege practices. Really.

New York Ethics Committee Speaks
The ethics panel of the New York County Lawyers' Association discussed how to handle inadvertent disclosures in an opinion issued last summer. The opinion, New York County Lawyers' Association Committee on Professional Ethics, Op. 730 (July 19, 2002), is online at www.nycla.org/library/730.htm. It states that if a lawyer receives information containing confidences that apparently were not intended for the lawyer, that lawyer should refrain from reviewing the information, notify the sender and comply with the sender's instructions on return or disposal of the information.

The New York panel acknowledged how difficult this practice is to enforce and, indeed, how unrealistically high the standard might appear to be. But as misdirected faxes and forwarded e-mails proliferate, the panel ruled, it is important to set and adhere to this high standard.

At the same time, not only did the panel find that a near majority of states have no ethics opinions on inadvertent disclosure, but there is no uniformity among bar associations that have considered the issue.

An Intermediate Test Might Govern E-mail
Interestingly, a case involving only paper documents (and some careless lawyering) might end up governing e-mail. The ruling is flexible enough to apply to electronic media, accounts for human error and is more fact-dependent than the other standards. The case is Elkton Care Center Associates LP vs. Quality Care Management, Inc. (Md. Ct. Spec. App., No. 335, 8/29/02). In it, the Maryland Court of Special Appeals found that the accidental inclusion of a damaging confidential legal analysis in a half-full box of documents produced during discovery-which went unnoticed until trial even though it was marked "privileged" and was "tabbed" for copying by opposing counsel-resulted in a waiver of any claim of privilege for the memorandum.

The chief judge, after noting that there was no Maryland case law on point, stated that the court had a choice of three different legal standards-strict, lenient or intermediate-to use in determining whether the privilege had been inadvertently waived.

The strict test, favored by Wigmore, finds that any inadvertent disclosure constitutes a waiver of privilege. The District of Columbia and Ninth Circuits generally apply the strict standard. (See, for example, United States ex. rel. Bagley vs. TRW, Inc., 204 F.R.D. 170, 177 (C.D. Cal. 2001).)

At the other extreme is the lenient or "no waiver'' test, under which the lawyer's negligence cannot waive the privilege because the client, not the lawyer, holds the privilege. This no-waiver approach tends to examine the subjective intent of the client's lawyer. Obviously, since the lawyer never intends to waive the privilege, only a deliberate disclosure of a document can waive its privileged status. (See Helman vs. Murry's Steaks, Inc., 728 F. Supp. 1099, 1104 (D. Del. 1990).)

The Maryland court rejected both of those approaches, explaining that the strict test prevents the use of pretrial remedies that would preserve the privilege without causing unfair prejudice, and that the lenient test does not provide any incentive for lawyers to take adequate steps to protect privileged documents.

The facts, please. The court chose, instead, to apply an intermediate, fact-specific test for determining whether the privilege has been waived by inadvertent disclosure. This test rests on five factors:

  1. The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production
  2. The number of inadvertent disclosures
  3. The extent of the disclosure
  4. Any delay and measures taken to rectify the disclosure
  5. Whether the overriding interests of justice would be served by relieving the party of its error

The court found that the first three factors all strongly favored a finding of waiver, considering that the document production was not massive and that counsel had had the opportunity to discover the presence of the document in the box when it was produced, and again when it was tabbed for copying.

The last two factors likewise strongly favored waiver, the court found. If counsel had brought the inadvertent disclosure issue to the trial court's attention, it could have prohibited opposing counsel from using the memorandum unless the "door was opened" to its use. The court observed that, even then, counsel could have changed its trial strategy to avoid giving opposing counsel an opportunity to use the memorandum.

What Should Best Practice Be?
Will the Maryland court's intermediate standard become the governing standard over electronic media? The flexible, fault-tolerant approach followed by the court may indeed save us when it comes to e-mail and, moreover, may become the most common best practice.

The "electronic approach" to inadvertent waiver would focus on whether counsel followed "reasonable practices" designed to protect against disclosure of the client information. This would include the means of transmission, the use of a private or local area network and the extent to which counsel understood the risk of inadvertent disclosure. This flexible standard appears to have the best chance of serving the profession well-both today, which is still a learning period, as well as in a subsequent era of increased sophistication among clients and counsel.

As always, however, in the absence of clear guidance from courts or state bar ethics committees, a prudent lawyer will adhere to the highest current standard, taking steps to employ reasonable practices to ensure the privacy of all communications with clients and, thereby, preserve the attorney-client privilege against the inevitable slips. An excellent first step in the electronic realm is to establish safe e-mailing guidelines so that a court can see that your practice took precautions to protect the privacy of communications. Without such guidelines, you look foolish. As foolish as a lawyer talking on an elevator.


Wendy R. Leibowitz ( wendytech@justice.com) is a lawyer, writer and the editor of Cybercrime and Digital Discovery and Electronic Evidence. Her Web site is www.wendytech.com.