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Modern law practices increasingly rely on technology to accomplish basic tasks. From digital calendars to cloud-based work management systems, advancements in technology can increase efficiency but also can increase risk. Misfired emails, for example, could give rise to claims of malpractice, violations of confidentiality, or waiver.
For attorneys, there is the risk of legal advice, which was transmitted for a single purpose in a unique context, being transmitted and recycled for use in connection with another purpose or context. There is also the risk of sending a confidential communication to the wrong person. For clients, there is the risk of waiving the attorney-client privilege. And for recipients of these communications, there is the risk of detrimentally relying on an opinion that is neither valid or applicable to the facts and circumstances for which the email was forwarded.
For example, email correspondence involving commercial or residential real estate and other commercial transactions may be forwarded to third parties without the attorney's consent. Clients in these areas may believe a title opinion or a corporate authority opinion, which was rendered for one purpose, is good for all purposes. But that is rarely the case.
Although certain software may prevent an email from being forwarded, this is neither a practical nor effective solution for most law practices. Given the need for flexibility, there are things attorneys can do to reduce the risks of liability to a third party who is neither a client nor an intended recipient of the email communication.
Most attorneys guard against these risks by including a standard notice or disclaimer in the email footer of every outgoing email. It can be used, among other things, to include an attorney-client privilege notice or to address the risks of forwarded emails by putting recipients on notice of the boundaries for acceptable and permissible use of the content of the email.
While there probably are no "magic words" for use in email footers, attorneys can use language that closely approximates the intent and purpose of the disclaimer.
Nearly everyone has either received an email by accident or inadvertently sent an email to an unintended recipient. In both of these situations, the problem is that attorney-client and protected work product information is sent to someone other than the client.
One risk of this scenario is the waiver of privilege. But the greater risk is the disclosure of sensitive, confidential client information to someone other than the client. Most attorneys attempt to address this problem by including in their footer a notice conveying that the information contained in the email is protected by the attorney-client privilege.
American Bar Association opinions, state bar associations, and court rulings have varied on the effectiveness of such a footer. Despite the lack of consensus, it appears that there is some added protection in the liability context if attorneys adopt language in their emails that parallels the inadvertent disclosure language applicable in the discovery context.
Generally in California, where the client does not make the unintentional disclosure, the lawyer does not intend to disclose confidential information, and the inadvertently disclosed document was clearly marked as confidential, a court will be reluctant to find waiver. See State Compensation Insurance Fund. Fund v. WPS, 70 Cal.App.4th 644 (1999). This is especially true where the disclosing lawyer immediately contacts the unintended recipient to minimize resulting harm due to the unintended disclosure.
Inadvertent disclosure rules emerged as an additional layer of protection in cases where, in the production of hundreds or thousands of documents, a few privileged documents were inadvertently disclosed. Upon discovery, an attorney who inadvertently disclosed confidential information could shift the burden to the recipient to take corrective action, including isolating, returning or destroying the inadvertently produced materials.
Indeed, once an attorney realizes privileged information has been received, the attorney must immediately notify the sender and attempt to resolve the issue. Id. at 656-57. Failure to do so, for example, by using that information to depose the opposing party's witnesses, could result in serious complications, including disqualification of counsel. Rico v. Mitsubishi Motors, 42 Cal.4th 807 (2007); Clark v. Superior Court, 196 Cal.App.4th 37 (2011) (disqualifying plaintiff's counsel who failed to return and extensively review attorney-client privileged documents).
Inadvertent disclosure instructions, although an exercise in damage control, may significantly increase an attorney's ability to potentially obtain some relief after discovery of the problem. In fact, if these instructions are added to the email footer, this language can consistently provide the kind of notice to which an attorney can cite in discussions with recipients of inadvertent emails or in a prayer for relief to a tribunal that has jurisdiction.
The inclusion of this description serves three purposes. First, it highlights the communications as protected so an unintended recipient cannot claim he was unaware of the privilege issue. Second, it reinforces the intent to preserve and protect the privileged nature of the communication and makes clear no waiver was intended. Finally, and perhaps most importantly, it distinguishes the email from other emails that may not be privileged.
Of course, emails still get read, even where they are unintentionally sent. These two steps adopted by firms—changing the subject line and the footer—may at least provide some additional protections from those situations.
As applied to a footer, the language addressing both the risk of forwarded emails or inadvertent emails might contain the following:
NOTICE: This email and all attachments are CONFIDENTIAL and intended SOLELY for the recipients as identified in the "To," "Cc" and "Bcc" lines of this email. If you are not an intended recipient, your receipt of this email and its attachments is the result of an inadvertent disclosure or unauthorized transmittal. Sender reserves and asserts all rights to confidentiality, including all privileges that may apply. Pursuant to those rights and privileges, immediately DELETE and DESTROY all copies of the email and its attachments, in whatever form, and immediately NOTIFY the sender of your receipt of this email. DO NOT review, copy, forward or rely on the email and its attachments in any way.
NOTICE: NO DUTIES ARE ASSUMED, INTENDED OR CREATED BY THIS COMMUNICATION. If you have not executed a fee contract or an engagement letter, this firm does NOT represent you as your attorney. You are encouraged to retain counsel of your choice if you desire to do so. All rights of the sender for violations of the confidentiality and privileges applicable to this email and any attachments are expressly reserved.
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