Emailing a Client at Work May Invalidate the Attorney-Client Privilege

E-mail is an easy and convenient way to communicate with clients, especially when you are providing a brief follow-up or update on a situation. If you e-mail a client at their work e-mail address, however, their employer might have the right to view those e-mails.

With that in mind, be sure to proceed with caution when sending e-mails to clients to protect the attorney-client privilege.

State courts have reached different decisions

The California Court of Appeals recently found that a client’s e-mail to her attorney, regarding her plans to sue her employer, was not privileged. The court said her e-mail was the equivalent of consulting her attorney in her employer’s conference room using a loud voice and leaving the door open. Notably, this e-mail exchange occurred on the company’s servers, through the client’s work e-mail address.

In New Jersey, a court held that emails sent from a Gmail account, or another web-based account, were still private and confidential.

There are numerous solutions

Instead of sending an e-mail, pick up the phone and call your client. Talking with your client is more likely to strengthen your attorney-client relationship. Having a five-minute conversation is also more efficient than sending ten e-mails back and forth.

If you need to send an e-mail, send it to your client’s personal e-mail address. Many clients are inclined to use their work e-mail address because it is right in front of them and easy to use during the day. Convenience, however, means nothing when it invalidates the attorney-client privilege. If a client is savvy enough to use work e-mail, they undoubtedly have a personal e-mail address.

Clients should also be advised to access their personal e-mail address through a web-interface, instead of setting up Microsoft Outlook to receive all their personal and work e-mails.¬†You could also tell clients to use their own internet accessible device—netbook, iPad, smartphone—to communicate with you while they are at work.

You can still e-mail clients, just be careful about what you send and where you send it.

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Randall Ryder
Randall sues debt collectors that harass consumers, assists consumers with student loan issues, and defends consumers in debt collection lawsuits. He is also an attorney instructor at the University of Minnesota Law School.

3 Comments

  1. Avatar Attorney David says:

    This actually frightens me a tad since I think I’ve lapsed quite a bit. I have been mindful of company email where they were possibly adverse parties, but this is a good heads up.

  2. Avatar Susan GAinen says:

    Just when I thought that my list of the pitfalls of various kinds of electronic activity was complete 1,222,556,973, give or take a million), you’ve added one more.

    Thanks, Randall.

  3. Avatar Tom Matte says:

    I would agree that a personal Gmail account should fall under private and confidential. It would seem clear that an Outlook email with the companies name in the address would not be considered private.

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