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.