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Think twice about lawyer-client contact via e-mail

Rochester Business Journal
August 18, 1995
The increasing reliance on electronic mail for communications within and between organizations raises new issues and new variations on old issues. Some of the very attributes that make e-mail attractive--such as ease of use, ability for widespread dissemination of information, and built-in amenability to search and retrieve--give rise to new and unfamiliar business and legal risks.

Several years ago, this column addressed the liability and security issues of e-mail, and focused on the discovery and admissibility of e-mail messages in legal proceedings. Although there have been relatively few cases specifically involving e-mail transmissions, cases involving other types of computer records and printouts make it clear that the courts treat electronic records much like traditional paper records. This analogy is important because the courts are also comparing e-mail messages with traditional telephone conversations as regards the confidentiality of the attorney-client privilege.

The attorney-client privilege prevents the discovery and use in litigation of confidential communications between attorney and client. The privilege is intended to encourage frank and full disclosure by a client to his or her counsel so that legal problems can be thoroughly and accurately analyzed. In New York, the privilege is codified in the New York Civil Practice Law and Rules. In federal court proceedings, privilege issues are governed by Federal Rules of Evidence.

Those bound by the privilege include the attorney to whom a disclosure was made, as well as any person who obtains evidence of the communication without the knowledge of the client. There is a long-standing and logical principle that communications made in the known presence of third parties are not privileged. For example, a New York court held that a defendant speaking over the telephone to a lawyer in the known presence of a police officer and another person could not have intended the communication to be confidential.

An important distinction must be made between communicating on private, subscriber-based systems and sending messages via the Internet. Since the Internet is a public network of networks, there is no assurance of privacy. Private computer networks, on the other hand, have security barriers, commonly referred to as "fire walls,'' to prevent public access.

There is no reported court decision squarely addressing the issue of whether the attorney-client privilege applies to e- mail communications. However, in 1992 a Delaware court tacitly approved the applicability of the privilege to e-mail communications.

The e-mail message at issue was sent by one IBM Corp. employee to another and was related to legal advice given to the sender by in-house counsel regarding pending litigation. The court dealt primarily with the issues of whether the parties intended the message to be confidential, and whether the privilege applied despite the fact that the message was not sent directly to an attorney.

The court did not address the specific issue of whether the privilege applied to an e-mail message. However, in deciding that at least part of the communication was privileged, the court implicitly acknowledged that the users had a sufficient expectation of privacy to invoke the privilege.

By comparison, recent opinions dealing with the privacy of wireless-telephone conversations provide some guidance regarding the confidentiality of e- bail messages. Again, there appear to be no cases specifically discussing the attorney-client privilege as applied to portable- or cellular-phone conversations.

However, in deciding that overhearing a conversation on a portable telephone did not violate a state statute prohibiting wire- tapping, a Georgia appeals court observed that cellular-telephone users have no justifiable expectation of privacy. From an ethics standpoint, the Illinois State Bar Association became the first bar association to prohibit a lawyer's use of a portable phone for confidential client discussions.

Although no court has specifically considered the applicability of the privilege to e-mail communications, the fundamental distinctions in e-mail and telephone technologies warrant a different treatment for e-mail.

Wireless-telephone transmissions consist of simple radio signals that can be intercepted by professionals and amateurs alike. Since e-mail systems rely on conventional telephones to convey communications, the expectation of privacy is analogous to that for conventional phone conversations, which are entitled to the protection of the privilege.

A reasonable expectation of privacy is not an absolute guarantee of confidentiality, especially with the ability of hackers to gain access to computer networks. In addition, systems administrators for internal computer networks and electronic-communications carriers have the ability to access their own systems.

However, there are a few considerations that favor the expectation of privacy. First, the Electronic Communications Privacy Act of 1986 prohibits the interception, disclosure and use of e-mail messages by electronic-communications service providers. Carriers are forbidden from divulging the contents of electronic-mail communications to anyone other than the intended recipient or the recipient's agent.

Second, access to internal and external electronic-communications systems typically is controlled by various procedures and system features designed to promote security. In addition to security guards and building-access codes or pass-cards, organizations typically rely on user- identification passwords to control access to computer networks. Access to the systems of commercial e-mail service providers, such as MCI Mail, typically is limited to subscribers.

Looking to the analogy to traditional telephone communications between lawyer and client, and given the protections afforded by law and by system controls, the better argument would appear to be that e-mail users enjoy a reasonable expectation of privacy.

In a society that believes in and practices the free flow of information, e-mail challenges users to pause and think before sending a message. E-mail exchanges between attorney and client should be carried out with considerable thought.

(Justin P. Doyle is a partner with Nixon, Hargrave, Devans & Doyle LLP. His colleague, Don Wade, assisted with this column.)

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