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Ethics Byte

Early client education can prevent
big problems later

By Diane Karpman

A slew of recent decisions from all over the nation clearly demonstrates a lack of consumer knowledge regarding the idea of privilege and attorney-client emails. Recent American Bar Association Opinion 11-459 justifiably suggests that it’s our duty to remedy this situation.

Often what clients “know” about the legal profession is communicated via the media, including television and movies. Remember, when clients watch “Law & Order,” they are not counting the constitutional violations that occur in the interrogation room. They think that what occurs is accurate. Clients will only know what their lawyers teach them about privilege.

The overarching principle in much of professional responsibility involves client expectations. Create reasonable expectations that will justify a finding of privilege when needed or you will miss a golden opportunity to aid your clients.

The best time to educate clients about privilege is at the inception of the relationship with the retainer/engagement letter. Many of you have done that for years with a box in the fee agreement, where clients can check how they want to communicate with you. Many of you would never dream of sending a fax in an employment case to a client’s shared facsimile machine at the office. These are not new or novel issues. However, email and technology are causing us all to reconsider some of these privilege issues, and it’s our responsibility to inform the client.

Let’s assume an employee discusses potential litigation against an employer with a lawyer via office email. The employer’s handbook unequivocally tells the employee that company computers are not to be used for personal purposes and aggressively warns the employee that the employer can and will monitor emails sent from and to the workplace. Employee sues and employer recovers all employee’s emails. Employer informs employee’s lawyers that they will use the emails in the litigation. Employee’s lawyer files a motion asking that the email be returned and barred from use in trial.

Nationally, this is an increasingly common scenario. In a recent California case, Holmes v. Petrovich Dev. Co., LLC, 2011 WL 117230 (Cal. App. 3 Dist. Jan. 13, 2011), the employee had to face the consequences of these emails, because the employer’s handbook and other warnings made any expectations of privilege unreasonable. New York would agree, but New Jersey would protect the privilege and might disqualify the employer’s lawyers for refusing to return the email unread.

ABA Opinion 11-459 maintains that lawyers need to anticipate that employers will use handbooks and warnings to destroy employee expectations of privilege. It is our responsibility as lawyers to guard against this. This issue also arises in “shared” communications devices in family law matters.

A few weeks ago, I had the opportunity to discuss these issues on NPR on “All Things Considered.” Click on this link, and you can hear more of this discussion, which also involves ownership of the account, ownership of the device, private passwords, etc.

• Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at