Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

This is the second in a four part series on the duty of confidentiality.

Attorney-Client Confidentiality and the Magic of Email.

Ah, email….  So quick.  So smooth.  So easy.  So much more likely to result in sending a written communication to an unintended recipient. 

Of course, a privileged communication does not lose its character as such merely because it is sent via electronic means. (Evid. Code § 917(b).)  Equally apparent is that misdirecting a written communication is nothing new.  At some point or other, we have all probably received an envelope duly addressed to us which contains a letter intended for someone else.  However, email programs contain some features that increase the chance of misdirecting attorney-client confidential communications.  As most everyone knows, Outlook has a convenient “auto-fill” feature that calls up possible addressees as one starts to type a name, e.g., “Robert” might call up options of “” and “Robert@MostImportantClient-I-WillLoseIfThisEmailIsMisdirected.ouch.”  Second, the Reply and Reply to All buttons are conveniently located but a millimeter from each other.  Thus, an intended Reply to one person might end up in the hands of all original recipients.  If the reader has not yet inadvertently sent an email to an unintended recipient, or received an email intended for someone else, give it time; it will happen.

Among possible others steps, two safety measures come to mind.  First, it pays to form the habit of taking just the second or two it takes to carefully review the “TO” and “CC” lines before hitting Send.  This might seem impressively obvious, but it is best not to be oblivious to the obvious.  Second, include an appropriate statement at the top of the email such as the following:  “PERSONAL AND CONFIDENTIAL; ATTORNEY-CLIENT PRIVILEGED; FOR [CLIENT NAME] ONLY.” This can be set up to appear automatically as an email template thereby saving the need to constantly copy and paste.  Just about all AutoSignatures contain a statement along the lines of, “This message contains information which might be legally privileged….”  The problem with this common statement, however, is that it is often in small font, most people do not understand the meaning of “legally privileged” standing alone, and the statement appears at the bottom of the email.  Thus, the unintended recipient does not get to the warning until s/he has read the substance of the email.  By contrast, immediately warning any unintended recipient that the email is “PERSONAL AND CONFIDENTIAL” and “…FOR [CLIENT NAME] ONLY,” increases the chance that the unintended recipient will not read the email and that later steps to diminish any prejudicial effect of the unintended disclosure will be successful. (Of course, labeling an email as “PERSONAL AND CONFIDENTIAL” might result in the unintended recipient wanting to read it ever more; there is, as yet, no computer remedy for human nature.)

Even with safety precautions in place, at some time one might well be faced with having inadvertently disclosed confidential information.  Post-disclosure damage control is the topic of the next Ethics Corner piece.

--Luis E. Ventura

No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis.  Any views expressed are those of the author only, and not of the SDCBA or its Legal Ethics Committee.**