How To Waive the Attorney Client Privilege By Email

envelope emailAfter I had been emailing a client at the email address she had given me, I noticed something odd in my email program - my client’s husband’s name appeared as the sender of the emails she was sending me. When I questioned the client about this and she explained that the address she gave me was a “family email” which her husband not only had access to, but which he frequently read.   As a result, I can no longer email this client.

Communications between an attorney and a client are supposed to be privileged.  The purpose of the privilege is to ensure that communications between the attorney and client are confidential; neither the client nor the attorney can be compelled to reveal the substance of their communications.   However, if a third party is present, the privilege is waived.   By including her husband in the email exchange, the client may have the waived her attorney client privilege.

Taking the waiver of the attorney client privilege aside, I cannot fathom why the client would want her husband to be privy to the legal advice she was being given.  Sooner or later in our email communications, we would have discussed negotiation and litigation strategy (fortunately, we had not gotten there yet).   Wouldn’t it be nice to know your spouse’s settlement position before you made an offer?  Why accept x dollars, if they are willing to pay 3x?

It just seemed like common sense to me that emails intended to be confidential would not be sent to the other spouse’s email.  In the old days when we mailed and faxed communication, we always made sure that the communications were “secure” and free from the other spouse’s prying eyes.

Given the ease of opening email accounts through gmail, yahoo and Hotmail and the fact that the majority of communication between a client and an attorney are going to be through email, I cannot understand why anyone would give a communal email address to their attorney.

I suppose I now  have a new question to ask during the intake process- is this your private email and does anyone else, particularly your spouse,  have access to it?    If anyone else has access to the email account, I may have to seat them in front of my computer advise them to open a new account for our privileged communications.

182 Responses

  1. H David, There are even more problems. I have found that even when clients have separate email addresses they can be vulnerable. I now regularly tell clients to change passwords. Because it is so easy and inexpensive now to put spyware on a computer I now often tell clients to have that checked as well. I love your blog. Best Nancy
  2. You are correct. The next day i received an email from a different client with the receipt for the husband's purchase of email spyware. Daniel Clement
  3. I love emails but they are a quagmire. I've had a sophisticated businessman forward my emails to the opposing attorney to "expedite" negotiations. I've been on the receiving end of ccs from opposing parties in emailsmaddressednto their attorneys. Because the problem is so pervasive, I am now developing a separate electronic policy. The highlights are: they establish an email address solely for communication with my office; they do not access it from a household computer; and they forward nothing. Time will tell.
  4. I think your solution is viable. The most common email problem I see is the "Reply all" where i forward a communication from opposing counsel to my client, with or without my comments and the client sends his reply to everyone.
  5. My company, Privacy Data Systems, provides secure communications - much different than regular email, but still using regular email address as a vehicle for the alert notice. One idea that we tell our customers - is to password-protect the messages they send to a client, if they are unsure that the email address is "communal" or not. That way, even if the client's spouse, for example, recieves the alert notice - they would still be unable to retrieve the message. Our product also has a "restrict forward" feature, which can help prevent accidental or unauthorized disclosure as well. Email is super convenient, but also sometimes very dangerous, and the reply-all is a disaster waiting to happen. I'm sure we all have a "reply-all horror story." Great blog, by the way.
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