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How to Avoid Waiving the Attorney-Client Privilege in Email Exchanges

Stewart Edelstein

How to Avoid Waiving the Attorney-Client Privilege in Email Exchanges
Liubomyr Vorona via Getty Images

Although efficient, emailing your client can be hazardous to the attorney-client privilege, unless you are very conscientious. Some cautions:

If you represent an individual, don’t send emails to your client’s place of business, as there may be a lowered expectation of privacy compared with a private email address. Any emails you send there may be discoverable.

In some instances, a husband and wife share one email address. If you send emails to a shared email address, you can run into potential waiver issues, because a non-client has access to privileged emails. Avoid any such issues by asking your client to create a separate individual email account for your communications.

Think twice before copying anyone on an email to your client. Copying your paralegal, secretary, or co-counsel does not create a waiver issue. But if you copy your expert witness or someone else outside your firm, you are looking for trouble. The same caveats apply if you copy your client on any email you send to anyone not covered by attorney-client privilege or work-product doctrine. The better practice is to forward emails to your client as appropriate.

Beware of email chains. Back in the chain, you may have sent an email to your client, without waiving the attorney-client privilege. But the message you are about to send, in the same chain, may waive the privilege if someone outside the privilege or work product doctrine receives it.

Avoid sending carbon copies of emails to your client, because the recipient may push “reply all” and transmit it to others, including people not covered by the attorney-client privilege. Instead, forward emails to your client as appropriate.

Before pushing “send,” get in the habit of asking yourself: If I send this email (including previous messages in the email chain) to these recipients, am I waiving the attorney-client privilege?

What should you do if you discover that you have inadvertently sent opposing counsel an email that was intended only for your client? Immediately call opposing counsel to advise that you inadvertently sent a privileged communication to him or her. Ask opposing counsel not to read it and not to print it. Ask that he or she delete the email (and delete it from the trash folder). If the email has already been printed, ask that all copies be destroyed. If already forwarded, instruct the recipient to follow the same instructions. Lastly, ask for confirmation in writing from opposing counsel that they have complied.

Opposing counsel should send you an email confirming that all this was done. See Model Rule 4.4(b) and, more generally, FRE 502(b) and (c), and Rule 26(b)(5)(B). Opposing counsel should cooperate but, if not, you should promptly file an appropriate motion.

Likewise, if you receive an email or other document by the attorney-client privilege, you are ethically required to do the same. If in doubt, seal the document and notify opposing counsel or seek a court order as appropriate—but do not read it.