It’s not news that attorneys (and, frankly, most people) spend a large portion of their time emailing with clients. It’s easily forgotten, though, that multiple legal and ethical challenges can be implicated in doing so, including maximizing the attorney-client privilege for such communications and identifying which persons are actual “clients” of the attorney. Not only are there challenges in navigating these communications, but the underlying legal framework is still changing and varies across important jurisdictions, including New York and Delaware. Given these potential issues, we’re providing a quick refresher on how we approach these communications.
Let’s start with a short summary of the key points of the attorney-client privilege. For the privilege to apply, the communication must include (1) a client, (2) and an attorney, (3) making a confidential communication, (4) that was made for the purpose of rendering or seeking legal advice. Though it sounds simple, the way a court may interpret it is not.
In order for a communication to be privileged, it must be made in confidence and intended to be so. In other words, the presence of a non-client, or the disclosure of confidential information to a non-client, will generally defeat the privilege. It’s obvious that if a lawyer and client are speaking in a private conference room or on the phone, those communications are confidential. But when you are communicating through email, or including a broader group in the communication, it’s less clear.
As a transactional attorney, I frequently take a second look at the parties I’m cc’ing when communicating sensitive information — am I including brokers, accountants, consultants, or anyone else? Depending on which jurisdiction’s laws apply, doing so may invalidate the privilege as not all of the foregoing persons are considered “clients.”
It may be clear that an attorney is typically speaking to a client when conversing with a company’s president, but it becomes murkier as you consider other persons such as consultants. For example, an attorney might email the company’s president regarding a potential acquisition and cc the company’s accountant. Depending on the circumstances, it’s possible that including the accountant on that email would invalidate the privilege. In particular, did the attorney need the accountant’s expertise in order to render legal advice? If not, then the confidentiality of that email may be lost. Carefully managing the conversation and analyzing whether the accountant’s input is needed to render the legal advice is critical to bolstering the privilege defense.
Demonstrating that the communication is being made for purposes of rendering legal advice can also be tricky. Transactional attorneys, and in-house attorneys in particular, wear many hats and are often involved in the business side of things. However, a “business” communication is not protected by attorney-client privilege. “Mixed communications,” where there are both legal and business communications, can be privileged if they are primarily and predominantly of a legal character and were made in the context of rendering legal advice.
In other words, if an email contains too much “business speak,” it’s possible that a court will determine the communication was a business communication and not a legal communication. This becomes more relevant when there is a cultural push at a business to remove “legalese” from communications. Such a push is not necessarily a shock — lawyers have certainly been accused of using too much legal jargon. There have been times, however, where courts have taken strict views on what constitutes privileged information. Attorneys have to balance the desire to communicate more casually and the need to protect the communication’s privilege status.
On the other side of the coin, just adding some legalese to an email will not move the communication from the business realm and into the legal realm. For example, sometimes a client may want to cc an attorney on an email, and even add the “attorney-client privileged” or similar headers to it. That alone, though, won’t suffice to protect an email that only discusses business matters, especially if it’s primarily among businesspersons. In fact, courts have looked past such headers before to say the communication is not privileged or have required document productions to be re-reviewed to determine whether documents were appropriately withheld on the basis of privilege.
In short, legal practice is ever evolving and these days a client is more likely to text or email their attorney for advice rather than calling. Often, we are required to make quick decisions on how sensitive the matter is as we craft our communications and draft those communications appropriately. Being mindful of your words or being a “legal wordsmith” is becoming more important than ever to make sure the client is receiving appropriate legal advice and privilege is not being compromised. If you’re writing an email and are at all on the fence about whether one of these issues is implicated, here’s a piece of advice: pick up the phone and call before clicking “send.”
Isaac Figueras is a partner with law firm Nixon Peabody’s M&A and Corporate Transactions practice and serves as deputy co-leader of the firm’s Food, Beverage & Agribusiness team. He co-authored this article with Alexandra Moore, an associate in Nixon Peabody’s Corporate Transactions practice group.l