[blindLaw] Email and Attorney-client Privilege

Sai sai at fiatfiendum.org
Sun Jul 24 12:16:53 UTC 2022


Tom —

Standard disclaimer: I'm not a lawyer, I'm not giving legal advice (just
information), this isn't tailored to your situation, read the law for
yourself, things differ by jurisdiction, etc.

In particular, mind that
a. state laws about privilege vary significantly, and a lot of this is a
question of state law and state bar rules
b. non-US law about privilege can be quite different — including other
common law countries like the UK. Everything below only applies to the US
and assumes that there's no international aspect to anything. (If there is,
things get very complicated; the Sedona Conference is an excellent source
of detailed info and recommendations if you do get into this.)


> how the Attorney-client Privilege is also applied to the paralegal and in
particular electronic communication with clients through E-mail. The
textbook says “ If the communication is sent to the client and others have
access to the client’s e-mail, the attorney-client privilege must be lost.”

Your textbook is incorrect. Actually, it managed to be wrong on multiple
different issues within a single sentence.

First, the client is not the only person who has privilege. (Some kinds of)
agents of the client and lawyer are also privileged recipients. This
includes paralegals and people who help with communications (e.g.
interpreters, secretaries, delivery people, etc). I believe this would
include, for instance, someone hired to convert stuff to braille (as long
as it was with a clear expectation of privacy etc). Though note that if one
of those agents betray your confidence, then you could probably sue them,
but it'd probably still count as a waiver. (Many caveats apply.)

Second, even if a non-privileged person has access, it's not true that
privilege "must be lost". It depends on who that someone is, whether the
access is because the client consented or was negligent in taking
precautions to prevent others from accessing it, whether the access itself
was legal, what exactly was accessed (if some unrelated email was accessed,
that's irrelevant; if it's related, then you have to determine scope of
waiver); etc.


>  If that is true, then does that may the case would be dropped

No. Privilege will only come up in the first place if an adverse party
wants to get privileged information from a privileged person, or has
somehow obtained such information (possibly by other means) and wants to
use it as evidence. Then you have to assert the privilege against
disclosure.

If you win on the privilege claim, then the other side doesn't get to have
the evidence or introduce it as evidence — though they might be able to use
your withholding against you. If you lose on the privilege claim, then you
have to hand over the info and the adverse party gets to use it in evidence.

If you lose in the lower court, you might have to deliberately refuse to
obey, and be held in contempt, if you want to appeal it immediately.
Otherwise you might or might not be able to appeal it after final judgment,
but depending on how sensitive the info is, at that point it might be
irreparable even if you were to win the appeal after the fact.

Hopefully you don't have confidential info that's so bad for you that it
would result in an extremely easy win for the other side if they knew it,
but there's no such thing as an automatic dismissal on this. Either you
dismiss voluntarily, the other side wins on a motion to dismiss or summary
judgment (for federal civil litigation), or the court makes a sua sponte
motion to dismiss. Sua sponte dismissal is very rare in federal civil court
at least; basically only comes up for over-the-top obvious vexatious &
frivolous cases (which realistically will never reach a question of
privilege), or if neither side made a motion but the court thinks it's
become totally obvious who should win or that they lack jurisdiction and
just wants it to be over without waiting for a motion (rare, but it does
happen).

Note however that it is possible to functionally kill your own case by
claiming privilege. E.g. if you want to withhold info in one case (e.g.
because you're being prosecuted and take the 5th), but that exact same info
is unavoidably necessary for you to prove something in a different civil
case, then you have to pick. If you choose to withhold, then the other side
will probably win, because you are choosing to not introduce evidence that
would help you. This happened to Michael Cohen in the Stormy Daniels civil
case.

If you choose to withhold and have a right to do so, then in civil cases,
you might have an "adverse inference" order, i.e. the judge orders the jury
to assume that whatever you withheld was bad for you. Depending on what
that was, it might be irrelevant to the outcome or might cause a huge
problem.


> since it already established that a client may only lose attorney-client
privilege when the case is over

Also not true. You can lose privilege during the case (e.g. by disclosure
or by the lawyer participating in crime/fraud with the client).

And the privilege continues permanently until something happens to waive
it. The case ending is not a waiver or exception — though it might mean
that the attorney is no longer giving the client legal advice, so it's no
longer a communication with them acting as an attorney. Byt that rather
depends on the situation; legal advice about how to deal with the decision,
possibility to appeal, etc. is routine and still counts as privileged.


> or what happens is that if the firm decides to go to trial may be used as
evidence against the client?

Correct. Privilege is asserted, in a way anyone but those involved know
about, only at the point in time when someone else wants the info or wants
to use it. If you lose the claim of privilege, then you have to hand it
over (if it's discoverable in the first place) and the other side gets to
use it as evidence (if it's admissible in the first place).




I've attached a PDF about (non-governmental) attorney-client privilege
under US law in depth. Governmental privilege is a more complicated issue;
it's covered in this PDF, but I can send more specialized materials on that
if you want.

Here's a summary of the parts relevant to your question:

Privilege exists if
a. it's a communication
b. between privileged persons
c. in confidence
d. for the purpose of obtaining or providing legal assistance for the client

There are court splits on exactly what content counts as privileged. See
PDF pages 22 to 25.

"Privileged persons" include
a. the client or prospective client
b. the lawyer
c. agents of either

If the client (or their representative) is an organization, then it's more
complicated — but anyone in senior authority (directors, main officers) are
included. Other employees might be; the requirements are complicated and
vary by state. See PDF pages 28 to 41.

An "agent" includes e.g. couriers, secretaries, file clerks, paralegals,
etc. who help with communication or representation. Accountants are
partially privileged, with lots of caveats See PDF pages 49 to 57.

Case law and bar opinions about email has changed over time, as does state
law. Practically, the main issue will be whether a non-privileged person
has access to the email — e.g. if an employee is suing their employer, and
contacts their lawyer from a work account, then the employer probably has
access to it and that waives privilege. If a privileged person sends or
shows the email to a non-privileged person, it's waived. But it's more
complicated than that. See PDF pages 62 to 66 and 111 to 115.

More complications if someone involved is being wiretapped or the computers
are seized. See PDF pages 91 to 92.

Privilege is permanent until waived unless there's an exception. A case
ending isn't one. Client death is only partial waiver in some states; more
likely it just means that the client's heir is now the entity that holds
the privilege. But there are various exceptions, like if the dead client is
a corporation, or the case is itself about the client's death (e.g.
disputes over a will or suing the life insurance company). See PDF pages
105 to 106.

Even if waived, then you have to consider the scope of waiver; it's not all
or nothing, and depends on the subject. See PDF pages 119 to 128.

If it's accidental disclosure, there are lots of case by case analysis
requirements. In federal litigation, discovery agreements will usually have
a "clawback" clause to cover accidental inclusion of privileged info. See
PDF pages 129 to 135.

If the disclosure is involuntary, i.e. someone spied on you, hacked your
account, stole your stuff, etc., and you took reasonable precautions to
stop that, privilege is probably not waived. See PDF pages 137 to 139.

Sincerely,
Sai
President, Fiat Fiendum, Inc., a 501(c)(3)


On Sun, Jul 24, 2022 at 11:02 AM Thomas Dukeman via BlindLaw <
blindlaw at nfbnet.org> wrote:

> Hello fellow legal beagles!
>
> I am learning about how the Attorney-client Privilege is also applied to
> the paralegal and in particular electronic communication with clients
> through E-mail. The textbook says “ If the communication is sent to the
> client and others have access to the client’s e-mail, the attorney-client
> privilege must be lost.” If that is true, then does that may the case would
> be dropped since it already established that a client may only lose
> attorney-client privilege when the case is over, does that case get
> automatically get dismissed or what happens is that if the firm decides to
> go to trial may be used as evidence against the client?
>
> Thanks for your time and help,
> Tom
>
> Sent from Mail<https://go.microsoft.com/fwlink/?LinkId=550986> for Windows
>
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