We must have laws for lawyer-client e-mailing

There is a critical need for Congress and state legislatures to
protect e-mail communications between clients and lawyers.


With all the scandal investigations going on in Washington, you may think this issue is
only for high-level politicos. But the fact is, anyone who may communicate with an
inspector general or agency counsel on a contract dispute could get into trouble.


And if you administer an e-mail system, you could easily find yourself caught between
warring parties—one side wanting electronic records to be privileged, one making it
the subject of a subpoena.


A critical part of lawyering is protecting a client’s secrets. Traditional, common
law privilege protects from disclosure to the government or third parties what a client
says to his lawyer in order to obtain advice.


Lawyers don’t own this privilege; clients do. Clients can disclose such a
conversation to whomever they wish, but the disclosure to third parties can waive the
privilege.


Similarly, attorneys own something called the attorney work product doctrine. Reduced
to its essence, the doctrine says an attorney has the right to refuse production of his or
her work product, which includes his thoughts and advice to the client.


If a client and lawyer talk out loud in a crowded airplane or restaurant, and a third
party can overhear them, the privilege and work product can be waived. So the actions
taken by the lawyer and client to protect the privilege are highly relevant.


In general, even when a court has authorized electronic surveillance, lawyer-client
talk is protected.


Many companies and their outside lawyers communicate by phone or facsimile.


Every fax cover sheet that goes over the public telephone network from a lawyer has a
legend reading like the one that recently crossed my desk from the U.S. Attorney’s
Office for the Southern District of New York:


“CONFIDENTIAL U.S. ATTORNEY FACSIMILE COMMUNICATION. The information contained
in this facsimile message, and any and all accompanying documents, constitute confidential
information. This information is the property of the U.S. Attorney’s Office. If you
are not the intended recipient of this information, any disclosure, copying, distribution,
or the taking of any action in reliance of this information is strictly prohibited. If you
received this information in error, please notify us immediately by telephone at the above
number and destroy the information.”


I use this government claim to make the point. Now enter e-mail. Recently it has become
common for attorneys and clients to communicate by e-mail. Inevitably, attorneys begin to
offer advice and clients to communicate their secrets via the Internet or a private
network.


At this point one would think that by placing the notice of privilege and work product
on the document, the privilege and work product are protected even if the message is
misdelivered. After all, what is the difference between e-mail and fax in this regard?
Unfortunately, the current answer is plenty.


Recently, an official stated that the FBI reserves the right to take the position that
e-mail attorney-client communications are not privileged even if marked with the privilege
boilerplate. The agency’s logic: Everyone knows that an independent service provider
or system administrator may back up the e-mail message on its way from originator to
recipient. This role of third parties in the link means there is no privilege.


I believe this is nonsensical reasoning. So what is the answer?


First, until these issues are resolved, clients and their lawyers should avoid
exchanging secrets and advice electronically unless the messages are protected by
encryption—a nontrivial complication.


Although encryption can always be broken at will by any law enforcement agency, it is
the effort to encrypt, not the strength of the encryption program, that matters here.


Second, the fact that state bar associations are grappling with this issue individually
is heroic but not satisfactory. We need a federal rule that protects e-mail advice. The
states could follow the federal lead in drafting their own policies.


Although you may not see the need today, many feds—especially those who deal
regularly with contractors—will someday want a lawyer to listen to you about a
potentially expensive or career-damaging matter. Or you may have a personal legal need.


When that day comes, you don’t want Big Brother or anyone else arguing that an
Internet service provider’s backup tapes void your privilege.  


Stephen M. Ryan is a partner in the Washington law firm of Brand, Lowell &
Ryan. He has long experience in federal information technology issues. E-mail him at smr@blrlaw.com.

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