Comments on: ALERT: Don’t use work email to communicate with your personal attorney. You may waive Attorney-Client privilege.

By: Gordon Firemark

Gordon Firemark — Mon, 07 Dec 2009 17:59:40 +0000

My thinking is that encrypted email would be safER, since the encryption keys would remain privileged and confidential, notwithstanding the disclosure of the encrypted message in the course of discovery, etc. The message (in its encrypted form) would be discoverable, but the content would be unreadable without the key. (sure, it COULD be hacked, but doing so would be costly and difficult) Of course, if the employer has access to the encryption key, then all bets are off.

By: Mark Melickian

Mark Melickian — Sun, 06 Dec 2009 02:15:33 +0000

I agree that encryption is a good idea but query whether it solves the privilege issue, given the basis of the Idaho court’s ruling. If privilege can be waived due to knowledge of (or merely the fact of) employer monitoring, an encrypted message between client and attorney starting from (or directed into) an employer’s electronic domain would seem to suffer the same fate. Query further whether using an employer’s phone system to communicate with an attorney also risks waiver. At a minimum, a voicemail from an attorney left with an employee/client that is converted into email through the employer’s email system (increasingly common) would be at risk.

By: Gordon Firemark

Gordon Firemark — Fri, 04 Dec 2009 06:51:25 +0000

Funny, I hadn’t thought about the nightmare for lawyers. I figured it was a client-side issue. Another argument in favor of encryption.

By: Eric Cooperstein

Eric Cooperstein — Fri, 04 Dec 2009 04:24:11 +0000

That’s a gem! I especially like the part about the lawyer having “constructive knowledge” that the e-mails were not going to be confidential because of the employer’s domain name in the e-mail address. This is a nightmare for lawyers.

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