Your Client's Email Account and the Attorney-Client Privilege

The digital age and pervasive use of email communication gives rise to an entirely new and complex set of issues pertaining to the application of the attorney-client privilege and the potential claim for waiver of that privilege. Many commentators have addressed the use of commercial email servers and the implications of the terms and conditions applicable to such email accounts citing the potential that emails transmitted through such accounts may not be secure or protected. The commercial provider’s right to use, retain or review the information communicated may impact on the privilege. Even more complex are the issues that arise when email communications pass between a lawyer and a client utilizing an email account provided to the employee by the employee’s employer, or using an employer-provided computer. While the law on an employer’s right to review information passing through its computer systems is continuing to develop, the application of that law to potentially attorney-client privileged communications is in its infancy. Research regarding the application of attorney-client privilege to email communications exchanged through an employer’s email server reveals no case directly on point where the advice of counsel is sought regarding matters involving the employer.

Litigants seeking discovery of attorney-client communications through an employer-sponsored email account cite the principles developed in cases of inadvertent disclosure and the requirements for invoking the attorney-client privilege. Pennsylvania law permits the invocation of the privilege if the communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, as in Nationwide Mutual Insurance v. Fleming, 924 A.2d 1259 (Pa.Super. 2007). In Carbis Walker v. Hill Barth and King, 930 A.2d 573 (Pa.Super.2007), the Superior Court adopted the five-factor test to determine whether inadvertent disclosure amounted to a waiver of the attorney-client privilege: the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; the number of inadvertent disclosures; the extent of the disclosure; the delay and measures taken to rectify the disclosure; and whether the overriding interests of justice would or would not be served by relieving the party of its errors.