Does Using Gmail Put Attorney-Client Privilege At Risk?

That’s the silly question asked by the ABA Journal in this blog post. The answer is no. Using Gmail will not void or waive the attorney-client privilege.

Related“Everybody Panic: Google’s Computers Are Reading Your Email”

But what the comments make clear is that most lawyers think Gmail can only refer to the free email service. But Gmail is also part of the paid Google for Work service, and it comes with different terms.

Those different terms may be important, particularly if you are in Texas, because Texas Disciplinary Rule of Professional Conduct 1.05 says attorneys cannot use “privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation.” By letting Google serve ads on your client communications in exchange for “free” email, it certainly seems like you and Google are both getting an advantage your client didn’t consent to.

Even if you do not practice in Texas, you should probably pay for your email service — Gmail or not — and use your own domain as a matter of professionalism instead of letting some company serve you ads based on the contents of your attorney-client communications.

Pay for your email, whether or not you use Gmail, and you will solve the problem and look like a professional.

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  • Ugh, really!? I think some of the comments in the post show the ignorance of some people. Google is not reading emails. It’s scanning system pulls out relevant content and feeds ads.

    But who really cares? Just because you’re using a “protected” system, the fact is, your clients are also using Gmail accounts. In reality, people don’t care. Just disclose and get consent.

  • And let’s not forget that you can prevent any of these problems simply by using encryption: http://thedroidlawyer.com/2014/09/gmail-encryption-virtru/

  • MarkRosch

    First, I agree with Sam and Jeff.

    Second, an issue that’s always lost in this discussion is the fact the ALL email providers are scanning messages before they land in the users inbox. Any lawyer whose email provider provides spam filtering is using the client’s “privileged information of a client for the advantage of the lawyer.”

    Third, as one of the commenters on the original blog post noted ANY form of electronic communication is subject to possible interception – including landline and cellular phone calls.

    Fourth, I would love to see a security audit of the firm networks run by the commenters who are up in arms about Google’s storage/security policies. I’m sure they are all impenetrable, patched to the latest update, and that they have run background checks on their outside IT consultants. (Where’s the sarcasm font when you need it?)

  • Bob D

    It’s so easy to set up your own private cloud and domain server. Why trust third parties at all?

    • Because it is not actually all that easy. And your own private email server is almost certainly less secure than Gmail.