Clients are increasingly communicating with their attorneys by e-mail. They find communication by e-mail to be an easy and fast means to provide their attorneys with information important to the protection of their legal interests and obtain advice relative thereto. While clients surely believe that their e-mail communications involving legal matters are protected by the attorney-client privilege, equating an e-mail with a mailed letter, e-mail communications pose confidentiality and waiver risks on the part of clients that their attorneys must advise clients of, and as well advise how to avoid them. Instructive in that regard are several recent decisions that this column will address and comment upon.
Preliminarily, it must be kept in mind that e-mail communication has a statutory assurance of privilege and the endorsement of an ethics opinion. CPLR 4548 provides that all communications privileged under Article 45 of the CPLR do not lose their privileged status merely because they are communicated by e-mail.[FOOTNOTE 1] While CPLR 4548 addresses e-mail communication in the context of the rules of evidence, it does not address the attorney’s separate ethical obligation to avoid disclosure of a client’s confidences and secrets.[FOOTNOTE 2]
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